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^ 







• r 



I 



\ 

N 



REPORTS OF CASE^ 



ABOUED AND DETERMINED 



^nglisl €mxtB 0f C0mm0n f nk 



WITH 



TABLES OF THE CASES ARGUED AND CITED, AND THE PRINCIPAL 

MATTERS. 




EDITED BY 

HON. GEORGE SHARSWOOD. 



VOL. LXXIX. 



OOMTAIMIHa 

THE CASES DETERMINED IN EASTER TERM, TRINITT TERM AND VACATION, 

AND MICHAELMES TERM AND YAOATION, 1851, AND HILARY TERM, 1853, 

XIV. AND XV. VICTORIA. 



PHILADELPHIA: 
T. & J. W. JOHNSON & CO., LAW BOOKSELLERS, 

VO. 686 0H18TMUT 8TBKKT. 

1866. 



Kntered, acoordiDg to Act of CongresB, in the year 1855, \>j 

T. A J. W. JOHNSON 

in the Clerk's OiBoe of tb-* Dintriot Court q^tUUMferft^I9K|ot of PenniyWania. 



I tne year ii 
' tb * Dixtriot Court Q^MBasferftOMiot of 






•• ^ 



QUEEN'S BENCH 
REPORTS.. 



BY 

JOHN LEYCESTER ADOLPHUS, of the Inner Temple, Esq., 

AND 

THOMAS FLOWER ELLIS, of the Middle Temple, Esq., 

BARRISTEB8 AT LAW. 



/KEW SERIES. 



VOL. XVII. 

CONTAINING THE CASES DETERMINED IN EASTER TERM, TRINITY TERM 

AND vacation/ AND MICHAELMAS TERM AND VACATION, 1S51, AND 

HILARY TERM. 1852. XIV. AND XV. VICTORIA. 



WITH 



TABLES OF THE NAMES OF CASES ARGUED AND CITED, AND THE 
PRINCIPAL MATTERS. ' 



PHILADELPHIA: 
T. & J. W. JOHNSON & CO., LAW BOOKSELLERS, 



NO. 585 0HB8TMUT 8TRKBT. 

1866. 



JUDGES 

or 

THE COURT OF QUEEN'S BENCH, 

DURING THE PERIOD OF THESE REPORTS. 



The Right Hon. John Lord Campbell, Chief Justice. 

Sir John Patteson, Knt. 
Sir John Taylor Coleridge, Knt. 
Sir William Wightman, Knt. 
Sir William Erle, Knt, 



attornet-general. 
Sir Alexander Jambs Edmund Cockburn, Knt. 



solicitor.general. 
Sir William Page Wood, Knt. 



TABLE 



ov 



THE NAMES OF THE CASES 



REPORTED IN THIS VOLUME. 



A. 



VAQM 



Ambergate, &c,, Railway Compa- 
ny, Regina ». . 362, 957 

Nottingham, Boston and 

Eastern Junction Railway Com- 
pany, Cort V, . . .127 

Archibald, Sievewright v. 103 

Armistead v, Wilde . . 261 



B. 

Bannatyne, Regina v. . . 524 

Barron, Burmester v. . 828 

Basset, Regina v. . . 332 

Beadon, Hope v. . . . 509 

Beanmont v. Squire . 905 
Bedford, London and North West- * 

em Railway Company v, . 978 

Beesley, Finney v. . .86 

Biddulph v. Chamberlayne 351 

Biram, Regina v. . . . 969 

Blair v. Ormond .« . 423 

Bowley, Chelsea Waterworks Com- i 

pany t'. • • ^^^ I 

Boyle V. Webster .950 

Brierly v, Kendall 937 

Brown, Regina v. . . . 833 



Burmester v. Barron 


pAsa 

828 


Burton, Driver v, . . ' . 


989 


C. 

Caldecote, Inhabitants of, Regina v. 


52 


Caudwell, Regina v. 


503 


Challis, Dpe V. ... 


166 


Chamberlayne, Biddulph v. . 


351 


Chelsea Waterworks Company v. 




Bowley . . ' . 


358 


Chichester, Regina v. note (c) . 


504 


Clare Hall, Young v. . 


529 


Cockburn, Regina v. (16 Q. B. 




480) 


784 


Colling, Regina D. . . 


816 


Cooke V. CunliflFe . 


245 


Corsar v. Reed 


540 


Cort V. Ambergate, Nottingham, 




Boston and Eastern Junction 




Railway Company 


127 


Cunliffe, Cooke ». . . . 


245 



D. 

Dale, Begina «. . 64 • 
Be Haber v. The Qneen of Portu- 
gal 171 

(7) 



Till 



TABLE OF CASES REPORTED. 



Depperman v. Hubbersty . 
Doe V. Cballis 

dem. Palmer v. Eyre . 

Lansdell v. Grower . 

Mence v. Hadley 

Baddeley r. Massey 



PA8B 

766 
166 
366 
589 
571 
373 
• Ashbarnham, Earl of, 
V. Michael ... 276 

Newman v, Rosbbam 723 

Evers ». Ward, (Post, 

Vol. 18) 
Driscoll V. Wballey . . 948 
Driver v. Barton . . . 989 
Dulwicb College, Regina v. . 600 
Dunn, Wilton v. . . . 294 
Dyson, HaU v. . . . 785 

E. 

Eaaon, Henderson v., In Error . 701 
East London Water Works Com- 
pany V, Trustees of Mile End 
Old Town ... 512 

Eaton V. Swansea Water Works 

Company .... 267 
Edmundson, In re . . . 67 
Edwards v. Martyn . . 693 
Eyre, Doe dem. Palmer v. . 366 



F. 



Finney v. Beesley 
Flewker, Re . 



86 
note (a) 572 



G. 



Gaskell, Regina v. (16 Q. B. 472) 524 
Gee V. Manchester, Mayor, &o. of 737 
Goodall, Massey v, . . 310 
Gower, Doe dem. Lansdell v, . 689 
Grange v. Trickett (2 E. & B. 395) 574 
Great Northern Railway Company, 

Salisbury, Marquis of, v. . 840 
Western Railway Company, 

Regina v. (15 Q. B. 379) . 309 
Greene, Regina v. , . . 793 
Griffiths, Hyatt v. . 505 
Regina t;. . . . 164 



H. 

Hadley, Doe dem. Mence v, . 571 

Hall V. Dyson . ^ . . .785 

Hammond, Regina v. . . 772 

Hannah, Hirst v. . . . 389 
Hartfield, Overseers of, v, Rotber- 

field, Overseers of . . 746 

Haslam, Regina v. . . 220 

Hellier, Regina v. . . . 229 

Henderson v. Eason, In Error 701 

Roffeyr. , . 574 

Hide, Mosley, Bart., v. . . 91 

Hirst V, Hannah . . .383 

HoUoway v. The Queen , 317 

Hope 0. Beadon . . . 509 

Hubbersty, Depperman v. . 766 

Hyatt V. Griffiths . . . . 505 



L 



Ingham, Regina v. 



884 



Kendall, Brierly v, . . . 937 
Kentmere, Inhabitants of, Regina 

V 551 

King V. Rochdale Canal Company, 

In Error (14 Q. B. 136) . 495 
Kirk, Webster v. . . . 944 

L. 

Lancashire and Yorkshire Railway 
Company, Regina v, (16 Q. B. 
906, note (b)) . . .865 
Latham v. Spedding . . 440 
Lavey v. The Queen, In Error . 496 
Leith, Regina v. (1 E. & B. 121) 784 
Liddell, Tarleton v. . . 390 

Liverpool, Overseers of, Wilson ». 303 
Llanelly, Inhabita|^ts of, Regina v. 40 
London and North Western Rail- 
way Company v. Bedford . 978 
Shrewsbury and 



Birmingham Railway Company v. 652 
Longhorn, Regina v, , , 77 

Longwood, Overseers of, Regina v. 871 



TABLE OF CASES REPORTED. 



IX 



M. 

Mancliester, Inliabitaiits of, Regi- 

na V note 46 

Mayor Ac. of, Gee v. 787 

, Mayor, Ac., of, v. 

Manchester, Overseers of . 859 
' Overseers of, Man- 

chester, Mayor, &c., of, v. . 859 
Marryat, Sims v. . . . 281 
Martyn, Edwards v. 698 

Massey, Doe dem. Baddeley v. , 878 

V, Goodall . . 810 

Memoranda .... 506 
Michael, Doe dem. Ashbumham v. 276 
Mile End Old Town, Trustees of, 
East London Waterworks Com- 
pany V, .... 512 
Montague v. Smith . . 688 
Moeley, Bart, v. Hide . . 91 
Mozsy, Orchard v. (2 E. & B. 206) 948 
Much Hoole, Overseers of, v, Pres- 
ton. Overseers of . . 548 

0. 

Orchard ». Moxsy (2 E. & B. 206) 948 
Ormond, Blair v. . . . 423 
Oxford, Guardians of, Regina v. 

note (y) 457 

P. 
Pearcy, Regina v. . . . 902 
Pocock, Regina ». . . 34 

Poor Law Commissioners (In re 
United Parishes of St. Giles 
and St George), Regina v. .445 

V. . note (^) 457 

IVeston, Overseers of. Much Hoole, 

Overseers of, v. , . . 548 
Priest Button, Inhabitants of, Re- 
gina V 59 



Queen, The, Holloway v. . . 817 

Lavey v. . 496 

South Eastern Rail- 
way Company v. 485 

of Portugal, De Hnber v. 171 

of Spain, Wadsworth v, 196 

VOL, XVII. — 2 



R. 



Reed, Corsar v. 


. 540 


Reeves v. White . 


995 


Re Edmundson 


. 67 


— Flewker . 


. note (a) 572 



R^ina v, Ambergate, &c., Rail- 
way Company . 362, 957 

V. Bannatyne . . 524 

V, Basset ... 832 

V. Biram . . . 969 

V, Brown ... 833 

V, Caldecote, Inhabitants 

of 52 

V. Caudwell . . .503 

V, Chichester . note (c) 504 

i;. Cockbum(16Q.B.480)784 

w. Colling. . . 816 

V, Dale ... 64 

V. Dulwich College . 600 

V. Gaskell (16 Q. B. 472) 524 

V. Great Western Railway 

Company (15 Q. B. 379) . 309 

V. Greene . . 793 

v. Griffiths . . .164 

V. Hammond . . 772 

V, Haslam . . .220 

i;. Hellier . . 229 

V. Ingham . . 884 

V, Kentmere, Inhabitants 

of 551 

V. Lancashire and York- 



shire Railway Company (16 Q. 

B. 906) . . . note (6) 865- 

V. Leith (1 E. & B. 121) 784 

V. Llanelly, Inhabitants of 40' 

v. Longhorn . 77 

V. Ijongwood, Overseers of 871 

V. Manchester, Inhabitants 



of note 46 

V, Oxford, Guardians of 

note (^) 451 

V. Pearcy . . . 902, 

V, Pocock . . 84 

V. Poor Law Commission- 



ers, In the Matter of the United 
Parishes of St. Giles and St. 
George .... 445 
V. . note (^) 457 



TABLE OF CASES REPORTED. 



B^na V, Priest Hutton, Inhabit- 
ants of .... 59 

v. Robinson . . 466 

V, Rochester, Dean and 

Chapter of . . . 1 

V. Rowlands . . 671 

V, St. Andrew, Holbom, 

Inhabitants of . . . 746 

V. St. Giles without Crip- 

plegate, Inhabitants of . 636 
t;. St. James, Westmin- 
ster, Oovemors of Poor of 474 

— ^ V. St. Martin's in the 

Fields, Guardians of .149 

■ V. St. Peter, Barton upon 

Humber, Inhabitants of 680 

V, Scaife ... 238 

V, Shavington cum Gresty, 

Inhabitants of . . . 48 
17. Southampton Dock Com- 
pany .... 83 

V, Waverton, Inhabitants of 562 

1;. Wing . . . « . 645 

V. York, Newcastle and 

Berwick Railway Company (16 
Q. B.886) ... 244 
Robinson, Regina v. , 466 

Rochdale Canal Company, King v. 

In Error (14 Q. B. 136) . 496 
Rochester, Dean and Chapter of, 

Regina v 1 

RofFey t^. Henderson 574 

Rotherfield, Oyerseers of. Hart- 
field, Overseers of, v. , 746 
Rowlands, Regina v. . 671 
Rusham, Doe dem. Newman t;. 723 



St. Andrew, Holbom, Inhabitants 
of, Regina ». . . . 746 

St. Giles without Cripplegate, In- 
habitants of, Regina v. . 636 

St. James, Westminster, Govern- 
ors of Poor of, Regina v. . 474 

St. Martin's in the Fields, Guar- 
dians of, Regina v. . 149 

St Peter, Barton upon Humber, 



Inhabitants of, Regina v. 



630 



Salisbury, Marquis of, v, Grtot 

Northern Railway Company 840 
Scaife, Regina v. . . . 238 
Shavington cum Gresty, Inhabit- 
ants of, Regina v. . . 48 
Shrewsbury and Birmingham Rail- 
way Company v. London and 
North Western Railway Com- 
pany ..... 652 
Sievewright v, Archibald 103 
Sims V. Manyat . . 281 
Smith, Montague v, . . 688 
Southampton Dock Company, Re- 
gina V 83 

South Eastern Railway Company 

V. The Queen, In Error . 485 

Spedding, Latham v. . 440 

Squire, Beaumont v. 905 

Swansea Waterworks Company, 

Eaton V 267 

T. 

Tarleton v. Liddell . . .390 
Taylor, Tetley v. (1 E. & B. 521) 645 
Tetley v. Taylor (1 E. & B. 521) 645 
Trickett, Grange v. (2 E. &B. 395) 574 

W. 

Wadsworth v. The Queen of Spain 196 
Ward, Doe dem. Evers v. (Post, 

Vol. 18) 
Waverton, Inhabitants of, Regina v. 562 
Webster, Boyle o. . . . 950 

V, Kirk ... 944 

Whalley, Driscoll v. . . . 948 
White, Reeves v. . . 995 

Wilde, Armistead v. . 261 

WUson V. Overseers of Liverpool 303 
Wilton r. Dunn ... .294 
Wing, Regina v. . . . 645 

Y. 

York, Newcastle and Berwick 
Railway Company, Regina v. 
(16 Q. B. 886) . . .244 

Young v. Clare Hall . . 529 



TABLE OF CASES CITED. 



PAoa 

Adaini..London«idBkckw.UBaUw»yComOj,^^^^ j^^ ... 845 

P«»7 J 

Adderley v. DUon *. 1 Sim. A Sto. 607 388 

Alboo V. Pyka 4 M. A O. 431 1008 

Alaxaoder «. MUton S Oro. A Jar. 424> S. 0. S Tyt. 496 . 776 

«i Porter 1 DowL P. C, N. a 2»» . . .604 

AUen V. GreeofiU 4 Com. B. 100 776 

Aodenon v. Cbapmaa 6 M. A W. 488 364 

V. MmrtindiOe 1 Bm t» 497 990 

Andrewi v. Falhtm 1 Vm. Sen, 421 924 

«. HaUes 2 B. A B. 849 S76 

Anonymoos - Gary, 29 Bd. 1820 716 

Godb. 826 289 

16Jiiitioeofth«P6M«,49,JML26,1861 884 

7Q.B.798 . . .679 

Bkinn. 280 716 

1 Ventr. 286 ..'... . 188 

Areher e. Bamford 1 Car. A P. 60 690 

Argol V. Cheney Lateh. 82 417 

Arnold 9. Dimadale 2 B. A B. 680, 601 . * • • .284 

Arandel, I>aino» v. Barl of Pembroke I>y«r> 268 b. 809 

Adin w. Parkin 2 Borr. 666 169 

Aspray v. LoTy 16 M. A W. 851 998 

Aaton Union, Re' 6 A. A B. 784 156 

AUomey-Oeneral 9, Bnlwiefa College • . 4 Beav. 255, 261 616 

'■ 9, Middleton . . . . 2 Yea. 827, 828 27 

ATelynv.Ward 1 Yes. Sea. 420 924 

■ «. Browne 2 Hardr. 316 89 

BaUey v. Lloyd 6 Boaa. 880 254 

Baokof Bnglaad V. Anderaon .... 3 New Ca. 589, 666 . . .520 

Baakav. Self 3 Taunt 234 (note) . . 183,201 

Barker V. Barker 2 Simona, 249 740 

e. Coeka .3 Bearan, ^2 . 1 • • . 744 

Bateman V. Joaeph . \ . . . . 12Baat»483 830 

Baaly V. ai«enalade 2 Cro. A J. 61 430 

B«ekwith> CaM 2 Rep. 56 b 419 

Beonett V. Abnrrow 8 Yea. 609 254 

Bfrrhnan 9. Gilbert Bamea, 203 697 

(11) 



zu 



TABLE OF CASES CITED. 



BeTan 9, Qeihing 

BoTeridge w. Baiyia ..••.. 

BeTerley v. The Linooln Gas Light and Coke 
Company 

BeynoD «. Jonef 

Birmingham «ad Oxford Janotion Railway Com- 
pany V. The Qaeen 

Blair v, Ormond •••«.. 

Bleaden v. Cbarlea 

Bold o. Rayner 

Boodle V. Campbell 

Bonverie o. Milei 

Bradley o. Copley 

Brietol Poor, OoTeraon of, 9. Wail . 

Brocklebank v. Whitehaven Jnnetion Railway 
Company 

Brookes 0. Earl of Rirtn 

Brooks V. Rogers ••••.• 

Browing «. Aylwin 

Brace V. Wait 

Branswick, Dnke of, 9, King of Hanover . 

Bryan dem. Child «. Winwood . 

Bryteer o. Thames Haven Book and Railway 
Company . • . • . « • 

Buchanan v. Rocker • 

Bargees «. MeirlU 

Bttrkinshaw «. Birmingham and Oxford Jvndtloa 
Railway Company . • . . « 

Barrel's Case • • • • 



PAQI 

SQ.B. 740 486 

3 Camp. 262 . . • . . . SSO^ 

I 6 A. AS. 820 141 

15 U. A W. 506 . 



. 606 

. . . 860 

. \ .480 

. 008 

1 M. A W. 848, 8. C. Tyr. A 0. 820 . 118 

7 M. A O. 386 200 

. 808 

. . . 042 

. . . 162 



> 16 Q. B. 647, note (6) 

14 Q. B. 732 . 
7Bing.246 . 



1 B. A Ad. 88 

1 Com. B. 686 • . • • 

6A. AB. 1* • • • 

16 Sim. 682 846 

Hardr. 608 26 



1H.BL640 047 

7 B. A C. 204 127 

1 Man. A G. 1 101 

6 Beav. 1, S. C. 2 Ho. Lords Ca. 1 183, 200 
1 Taant 208 . . . ... .376 

2Ezoh. 640 188 

1 Camp. 63, East* 102 ... 102 
4 Taant 468 063 

6Exeh.476 846 

6 Rep. 72 a . • 726 



c. 



Callander 9, Howard . • • • 
Cambridge Union, Re • • • 
Camden, Lord, v. Home • . • 
Campbell 0. The Qaeen 
Camatic, Nabob of, «. Baft India Company 
Cartwright v. Oreen . . • . 

Cates V. Knight 

Chalk V. Deacon .... 

Chandler 0. Parkes .... 
Chaney v. Payne .... 
Chapman o. Speller .... 
Chelsea Waterworks Company v. Bowley 
Chesterton v. Farlar .... 
Chorlton, ConsUbles* Ao., «. Walker . 
Clarke «. Denton .... 
Clark r. Sharpe .... 

Clayton e. Lowe .... 

V. Wilton, Earl of . 

Clere, Sir Edward, Case of 

Clifford V. Beaamont .... 

Oobbett V. Grey 

Cocks V. Edwards .... 



M Com. B. 200 

A. ^ E. 024, note (a) 
4 T. R. 382, 1 H. BU 476 
UQ.B. 706,811 . 

1 Ves. Jan. 871, 386, note (64) 
8 Ves. 406 
3 T. R. 442 . 



6 B. Moore,* 128 
3 Esp. N. P. 0. 76 
IQ. B. 712 . 



14 Q. B. 621 
17 Q. B. 868 



7 A. A E. 713 
10 M. A W. 742 
1 B. A Ad. 02 



3 M. A W. 166 



6 B. A Aid. 636 

6 M. A 8. 67 (note) 

6 Rep. 17 

4 Rnss. 826 . 

4Ezch. 720 . 

2 DowL P. C. N. S. 66 



436 
707 
186 
324 
211 
066 
1008 
606 
062 
682 
2S8 
610 
186 
610 
186 
820 
730 
410 
264 
026 
688 
387 



TABLE OF CASES CITED. 



xui 



CoUj, Bx parte , 



PA«B 

CokbrookQ «. Tickal^ 4 A. A B. 916 617 

f 4 New SeM. Ga. 607. BiOl ConrW HU. 

t T. 1861 470 

2 Q. B. 680, 609, 000 .... 690 

7T. R.881 140 

1 Ld. Raym. 846 300 

. . . 4 M. AW. 784 06 

ISSim. 606 . . • . • . 410 

7T. Ii.666 047 



Oooeh «. Goodmam 

Cook «. Jenninfi 

— ^ •• IilMDOa ■••••• 
ConaU«.Caetell . . . . '. 

Ootterell v. Homer 

Oowley V. Dulop* 

Cox p. Midland Goantiei BaUway Company 

Cnddoek'B GaM 

Crake o. Powell 

Crup V. Banbary . • • . . 
Camming v. Boebaek ^ • • • • 
Catbill « Kingdom 1 Exoh. 494 



8Bxeh.268 143 

3 Den. Gro. Oa. 81 • • • .666 

2E. AB.310 441 

8 Bing. 894 ..... . 1008 

Holt N. P. G. 173 108 

1008 



Da Cofta «. Keir 

Dale V. Pollard 

Daoiel v. Bany 

Dtaiah Ship Noyiomhed, Gaae of . . • 

Dtrley v. The Queen 

Dane v. Jones • • 

Day e. Panpierre .^ 

V. Savadge 

Deacon, Ex parte ••.••• 

D« Bode, Baron, Caaa of 

De la Torre w, Bemalef . • . • • 
De Batsen «. Fair •••••• 

Dimes'! Gaae 

9. Grand Janetion Ganal Gompany, Pro- ) 

prieion of } 

Dodwell «. Gibba 

Doe «. Harlow 

It Wright 

- — dem. Fellowea e. Alfted • • • . 

Wetherell ff. Bird . . . • 

Goody 9. Garter . . ' . 

• Bari of Bgremoni «. Goortenay . 

Gadogan v. Bwart .... 

Palmer v. Byre • • . . • 

Morrison v. GloTer . • • • 

— Uoyd V, Jones 

Richards e. Lewis .... 

Otley V. Manning .... 

Golelongh o. MulUner .... 

Harrison «. Morrell . • . . 

Armistead v. North Staifordshire Rail. 1 

way Gompany i 

DaTy V. Oxenham .... 

— Lewis e. Rees 

Nowell 9. Roake .... 

B 



8 Ross. 860 . 
10 Q. B. 604 . 
4 Q. B. 69 . 

7 Ves. 698 . 

13 Gl. A Fin. 630 

8 B. A Aid. 166 
18 Q. B. 803 . 
Hob. 86, 97 . 
6 B. A Aid. 769 
8 Q. B. 308, 13 Q. B. 880 

1 Hot. Sapp. te Vesey, 149 
4 A. A K 68 

14 Q. B. 664 . 



8 H. Lords Ga. 769, 787 

3 Gar. A P. 616 ' 
12 A. A B. 40 

10 A. A B. 768 

I Dowl. A L. 470 
7 a A P. 6 . 
9Q.B. 868 . 

11 Q. B. 703 . 

7 A. A B. 636 
17Q.B. 866 . 
16Q.B.108 . 
16 M. A W. 680 

II Gom. B. 1086 

9 East, 69 
1 Esp. N. P. G. 460 

8 Gar. A P. 610 

16 Q. B. 636 . 



7 M. A W. 181 
6 Car. A P. 610 

8 Bing. 497 . 



. 739 

. 838 

. 864 

. 186 

. 164 

. 685 

. 186 

. 36 

. 607 

. 187 

. 189 

. 378 

. 36 

. 36 

. 169 

. 168 

. 167 

. 167 

. 610 

868,880 

. 408 

. 740 

. 878 

. 1008 

. 876 

. 737 

407, 736 

. 878 

. 876 



846 

693 
876 
264 



XIV 



TABLE OF CASES CITED. 



Doe dem. Barentook «. Rolfe 

Barnoi V Rowe . 

-^-^— Lifford V, Sparrow 

' Higgs V, Tenry . 

Marlow «. Wiggins 



• Danraven *. WilliamB 

• Jonei V. Williamf 

• Daniel «. Woodroffe 



Doo V. London and Oroydon Bailway Campany 
Dore V. Gray .••••• 
Doaglai V. ForresI . . • • • 
Daek v. Barton • . • • • 

Dudley, Sir Robert Caae of . • • 



8 A. A E. 650, 672 
4 New Oa. 737 
18 Bast, 859 . 
4 A. A E. 274 
4 Q. B. 867, 876 
7 Car. A P. 382 



6 A. A E. 291 

2 Ho. Lords Oa. 811 

1 RaiL Ca. 257 

2 T. R. 858. 865 
8 Ring. 686, 702 
1 L. M. A P. 201 
8 Inst 231 • 



PAttB 

. 410 

. 410 

. 739 

. 592 

. 597 

. 876 

. 867 

. 406 

. 840 

. 808 

. 192 

• 949 

. 809 



E. 



. Eason «. Henderson , 

East Lincolnshire Railway Aet, In rs 

Bde V. Jaekson 

Edgar o. Halliday 

Edinbargh and Glasgow Railway Company «. 

Monklands Railway Company 
Edwards v. Grand Janetion Railway Company 

V. Ronrke 

Egerton v. Mathews 

Eggington's Case ••...• 

Elderton v. Emmens 

Elton V. Larkins •••••• 

Elwes V. Mawe • 

Emmens v. Elderton • 

Evans v. Elliott 

*. Swete 



12 Q. B. 986 707 

lSim.N. S. 260 852 

Forteso.345 190,214 

1L.M. AP. 867 949 

12 Ca. Court Sess. (New Series)^ 1804 . 850 

1 Mylne A C. 650 665 

1 T. R. 4S6 . ' 696 

6 East, 807 107 

2 A. A E. 717, 731, note (a) . . . 838 

4Com. B. 479 141 

5 Car. A P. 385, a C. 1 M. A Rob. 196 610 

8 East, 88 684 

4 Ho. Lords Ca. 141 

0A.AB.842 • • • . .298 

2 Ring. 326 543 



F. 

Fellowes *. Clay • « • • • . 4 Q. B. 818 • • • • • .535 

Fenn V. Bittleston 7 Ezch. 152 •••••. 941 

Fenton e. Hoghes 7 Ves. 287 . • • • • .966 

Fit^ames V. Moy 1 Sid. 188 422 

Fletcher v. Calthrop 6 Q. B. 880 836 

Flewker, Re 17 Q. B. 572, note (a) • . . . 572 

Flight J. Cook 1 Dowl. A L. 714 694 

V. Thomas 11 A. A E. 688, 8 CL A Fin. 231 . . 271 

Forth V. Chapman . . • • . .IP. Wms. 663 743 

Frances's Case 8 Rep. 91 b . • • • . .139 

Freemen v. Rosher ••«... 6 DowL A L. 517 573 

Frost V. Lloyd 9 (J! B. 180 679 



G. 



Gare «u Gapper . 

GUlingham *. Waskett 



3 Bast, 472 . 
18 Price, 484 



191 
487 



TABLE OF GASES CITED. 



XT 











PAU 


Olorer v. London u^ North- 


•Weetem RaUway 


5 Ezeh. 88 • 




. 138 


Company 


•' * 






9. North Staffordshire Bailway Companj 


16 Q. B. 912 . . 




.. 72 


Qoooh'f Case . . 




5 Rep. 60 a . 
15Q.B. 578,582 . 




. 409 


Goodman r. Pooock . 


. . . . 


. . 141 


Ooodright dem. Hnmphreya w. 


Moeea 


. 2W. BL1019 




. 410 


Goom 9, AIIaIo . 


• • • 


. 6 B. A C. 117 




. 109 


Gordon v. Hsrper 


• ■ • 


7A. AE.9 . 




. 942 


Goald V. Gapper 


. 


. 5EMt,345 . 




. 191 


r. WiUiama 


■ • • 


. 4Dowl. P. C.91 . 




. . 788 


Gooldsworth v. Knighta 


• . . 


11 M. A W. 337 . 




. 595 


Grand Janetion Railway Company «. Dimea 


. 12 BeaT. 83, 2 Maon. A G. 285 


. 26 


Grant v. Fletcher 




. 5 B. A C. 436 


. • 


. 109 


Gray v. The Queen 




. 11 CI. A Pin. 427 . 


• • 


. . 75« 


Greene v. Cole . 




2 Wms. Saand. 250 o, 


6th od. 


. . 682 


Green v. Gatewick 




. Bull. N. P. 243 . 


. . 


. 241 


Gregif «. Welle . 




. 10 A. A B. 00 

. 15 Q. B. 957 . . 


• 


. 585 






. 688 


Gripper e. Bristow • 




. 6M. AW.807 


. 


. 387 



Ha^e V. Hall . 










5 Man. A G. 690 . 






. 690 


Haldane v. Beaoolerk 










3 Exch. 858 ... . 




. 690 


Hale? r. Margernm . • 










. 8Ves. 299 . . , . 




. 925 


Haigh V. Proet . 










7 Bowl. P. C. 748 . . 




. 386 


HaU«.Maule . . , 










7 A. A E. 721 




. . 191 


Hallen v. Rander 










1 Cro. M. A R. 266, S. C. 8 T 


yr.o 


59 . 585 


Hand «. Daniels 










1 L. M. A P. 420 . . 




. 949 


Harington v. Macmorris 










. 5 Taunt 228 . 




. 184,201 


Harrison, Henry, Case of . 










12 How. St Tri. 833, 851, 2 
. 6M. AW. .W . 




. 241 
• 81 






Hart V. Nash 










2 C. M. A R. 837^8. C. 6 Tyr 


.955 


. 435 


Haslope e. Thome 










. IM. AS. 103 . . 




. . 775 


Hatton V. Isemonger . 










. 1 Stra. 641 .. . 




. 183 


Hawee v. Forster 










. 1 Moo. A Rob. 368, 372 




. 106 


Hawl^er v. Field 










, 1 Lowndes, M. A P. 606 




. . 281 












. 15 Sim. 303 . 




. . 710 


Heyman v. Neale . . 










2 Camp. 337 . 






. 108 


Hibblewhite «. M'Moiine . 










6 M. A W. 200 . 






. 288 












. 2 Hare, 355, 372 . 






. 925 


Hoare v. SiWerlook . 










12 Q. B. 824 . . 






. 684 


Hoehster v. De la Tour 










2 B. A B. 678 . . 






. 140 












5T.R.236 . . 






. . 404 


Holerolfs Case . 










Moore, 486 . 






. 924 


Hollis 9, Palmer 










. 8 New Ca. 713 






. 439 


Holt «. Meddowcrofk . 










. 4M. AS.467 






. 690 


Horn 9. Gilpin • 










. Amb.255 . . 






. 716 


Home 9. Earl Camden 










2 H. Bl. 583 . . . 






. 185 


Hooper «. Stephens • 










. 4 A. A B. 71 . . 






. 436 


9. Treffey 










. 1 Exch. 17 . 






. 993 


HortoB «. Beekman . 










. 7T.R.760 . . 






. 186 


Hoole 9, Baxter 










. 3 East, 177 .. . 






. 947 



X71 



TABLE OP CASES CITED. 



HowdoD, Lord, «. Simpmii 
Howis 9. Wiggioa . • 



10 A. A B. 807 
4T. R.7U . 



PAOI 

602, 780 
. 047 



Jaffray w, Frabaln 

Jewison p. Dyson . 

Johnson's Case . • 

V. Legard 

V. Lord ^ 

— — — "*- V. Shippon . 

Jones, Lessee of Moffett, v. 

V, Ashnrst 

V, Harrison 

». Waite . 

— V. WestcoQib . 

Jones and Jamesi Re 



WhiUaker 



6 Bsp. N. P. G. 47 

M. A W. 540, 508, Ao. 

Gro. Jae. 610 

6 M. ik S. 60 . 

Moo. A M. 444 



. 2 Ld. Raym. 082 . 

{Longfield and Townsend's Irish 
Rep. 141 .... 
. Skinn. 857 .... 
. 6 Bzeh. 320 . 

5 New Ga. 341, 847, CL A F. 101 
. 1 Sq. Ga. Abr. 245 
. 1 Lowndes, M. A P. 66 



Exch. 



055 
615 
568 
410 
775 
185 

781 
81 
441 
780 
024 
188 



G. 5 Tyr. 587 , 



Kaye e. Bolton 6 T. R. 134 . 

Kemp V. Derrett 3 Gamp. 500 . 

Kempland v. Maeanlay 4 T R. 436 . 

Key V. Gotesworth 7 Bzeh. 505 , 

King e. Sears 2 C. H. A R. 48, S. 

e. The Qneen 7 Q. B. 705 . 

The, V. Bishop of Gbester . . . . 1 W. BL 22 . 

V, .... 1 Stra. 707, S. G. 1 Bam. K. B. 52 

Kinnersley v. North Staffordshire Railway Gom- ) ^ » r^ nu a^A 

p»ny i 

Kirby v. fiickson 1 L. M. A P. 364 . 



700 
502 
543 
772 
314 
670 
24 
26 

846 

040 



L. 

Lamprell v. Billericay Union .... 3 Ezeh. 283, 306 

Langston v. Langston 8 Bligh. N. S. 167 

e. Pole 5 Bing. 228 

Larkin v. Marshall 4 Ezeh. 804 

Lawford v. Gardiner .•••.. Barnes, 06 

Lee V. Ghaloraft 3 Phillimore, 630, 648 

Lichfield, Mayor of, v, Simpson . » . 8 Q. B. 65 

Lilley v. Harvey 5 DowL A L. 648 

Lindsay o. Leigh 11 Q. B. 455 . 

Litchfield «. Ready 5 Ezeh. 030 . 

Lomaz v. Landells ...... 6 Gom. B. 577 

London, Mayor, Ac., of, o. Master Wardens, Ac., ) « M A Rob 

of Pewterers' Company j 

Lnoas v. Jones . • . . . . . 5 Q. B. 040 

Lnokett v. Knowles 2 Com. B. 187 

Lueking v. Denning 1 Salk. 201 . 

Ludlow, Mayor of, v. Charlton . . . . 6 M. A W. 815 



,400 



810 
025 
025 
605 
607 
824 
1006 
443 
683 
303 
66 

274 

435 
770 
202 
143 



TABLE OF CASES CITED. xyu 



PAaa 

irClnra e. Ripl^ 6 Bzeh. liO 136 

ITDaaiers Case F<»t C. L. 121 32S 

MaeheU 9. Clark ...... 3 Ld. Raym. 778 408 

Kaekintoth 9. Trotter 3 M. ik W. 184 58S 

irMahoo«.Biifehen f 1 Purton Cooper, 467, S. 0. J PhiUipi'a 

I Rep. 127 710 

liaime. Moon R7. ik M. 249 . . . . 820 

Ifartiii dem. TregonweU v. StraehM • . 8 T. R. 107, note 417 

Haiten v. Lowia • . ^ . 1 Ld. Raym. 50 200 

Medina v. Stoaghton 1 Balk. 210, 8. 0. 1 Ld. Raym. 508 . 203 

MiUerv. Hay 3 Bxoh. 14 66 

Minehin e. Clement 1 B. ik Aid. 262 648 

Mondal v. Steele 8 M. A W. 300 87 

Monkleigh, Bx parte 5 D. A L. 404 . . » .632 

Montagoe, Lord, v. Dadman . . • , 2 Yes. Sen. 396 . • # • . 964 

Momria e. Glaai 2 M. A S. 444 . ^. . .964 

Moriey v. Attenborongh 3 Bxoh. 500 288 

Lord, Caie of 6 How. St. Tri. 769, 771, 6th reflation 240 

Monriaon v. Olover 4 Bxoh. 430 1008 

Mom «. Oallimore 1 Dong. 279, 1 Smith's Lead. Ca. 310 . 297 

L Cowp. 161, 172, 3, S. C. 1 Smith's Lead. 
Ca. 863, 368, b, e, (3d ed.) . . 200 

Moonaon v. Redshaw 1 Wms. Sannd. 196, d, e, 6th ed. . .646 

Monnnioy 0. Collier 1 B. ik B. 630 302 

Manden «. Dake of Bmnswiok . . . . 10 Q. B. 656 189 

Morray e. Bast India Company . • 6 B. A Aid. 204 946 

o. Jones . . , . • .2 Yes. ik B. 313 984 

9. Mann 2 Exeh. 638, 641 .... / 408 

V. Reevse 8 B. A C. 421. 788 



Moetjn e. Fabriga» j^^ 



• N. 

Kathans «. Giles 6 Tanni 668 . . • . • . 406 

Nerot V. Wallace 3 T. Jl. 17 790 

Kewboold e. Coltmaa 6 Bxoh. 189 811 

Sewton e. Boodle '. 9 Q. B. 948 698 

Kiaiv. BaTis 4 Com. B. 444 . . . . .761 

Kigfatingale «. Barl Fenert . . 3 P. Wms. 206 417 



aOennen e. The Qaeen 11 CL A Vin. 166 • . . 822,667,678 

Osioas V. Tyrer .IP. Wms. 343 400 

Ofthard 9, Moxsy 2 B. A B. 206 441 

Osborne «. Harper 1 Bast» 497 990 



Pftgee.Hayward 2 Salk. 670, 8. C. Pig. Bee. . . 176, OU 

P^e 9. Strand Union 8 Q. B. 326 142, 810 

Pttksre. Carter ...... 4 Hare, 400 730 

VOL. xvn. — 8 B 2 



xmi 



TABLE OF CASES CITED. 



Parry «. DaTiei 1 L. M. A P. 379 . 

Pardngton v, Woodaook A. A B. 690 

Payne, Bz parte 5 D. A L. 679 

PenUm v. Robart 4 Bap. N. P. G. 33, 8. C. 2 East, I 



PA«B 

. 949 
. 298 
. 1009 
. 584 



Peto V, Bladei 6 Taunt 657 290 

Philipi V. Bury Skinn. 447, 8. C. 2 T. R. 846 . 23 

PhiUipi V. Pearoe , 6 B. ik C. 433 692 

PhUlpotta V. Erana 6 M. A W. 475 136 

Phyiltian^ College de, Case of . . LHt Rep. 212, 213 .... 809 

Piokard e. Seaifl 6 A. A B. 469 169 

PiekBtook e. Lyiter S|C^fi.371 404 

Pitman v. Woodboiy 8 Exoh. 4 597 

Pitts V. Beckett 13 M. A W. 743 Ill 

PIaneh4 w. Collmni 8 Bing. 14 140 

Points V, Aitwood 6 Com. B. 88 . . • . « 808 

Pope ». Biggs 9 B. A C. 245 297 

Portngal, Qaeei of, e. 01yn . 7 €L ik F. 406 966 

Posteme v. Hanson 2 Baond. 60 565 

Powell 9. Divett '. 15 East, 29 113 



V. Shaw . 

Pownal V. Perrand 
Poynts, Sir Niobolas, Case of 
Prodgers v, Langham 
Prndhomme «. Fraser 
Pryor v, SWaine 
Pomell V, Young 



17 Q. B. 571 . . . note (a) 572 

6 B. A C. 489 946 

Cro. Jaei214 568 

1 Sid. 133 .782 

2 A. A E. 645 353 

2DOWLAL.37 387 

3 M. AW. 288 . . • : .441 



Rul. 



Regina «. Aberdare Canal Company . 

V. All Saints, Derby 

*. Ambergate, Ae., Railway Company 



V. Badeock • . • • 

V. Bannatjme . . 

V. Bamsley • . . • 

V. Barrett .... 

V. Basset .... 

». Binney .... 

«. Birmingham and Oxford Jonotion 

way Company .... 

9. Bolton . . • • 

V. Bristol, Goremor of Poor . 

V. Baehanan . ' . 

9. Caldeeote . . • . 

V. Caledonian Railway Company 

*. Cambridge Oas Light Company 

V. Charlesworth 

V. Cheltenham Commissioners 

— *- w. Chester, Dean and Chapter of 
— '— * V. CoUingwood • 

. 9. Coward .... 

-^-^ V. Daniell .... 



14Q.B.854 : 
14 Q. B. 307 . 

1 E. A B. 372 
17 Q. B. 362 . 
6Q.B. 787 . 

2 L. M. A P. 213 
12 Q. B. 193 . 

2 Car. A Kir. 343 



17 Q. B. 332 . 
1 B. A B. 810 

[ 15 Q. B. 634 . 

1 Q. B. 66 



13 Q. B. 406 . 
8 Q. B. 883 . 
17 a B. 52 . 
16Q.R. 19 . 
8 A. A E. 78 . 
2 L. M. A P. 117 
1Q.B.467 . 

15 Q. B. 513 . 
2 Ld. Raym. 1116 

16 Q. B. 819 . 
6 Mod. 99, 8. C. 1 Salk. 



880 



. 26 

551, 640 
365, 959 
. 959 
558, 868 
. 535 
. 768 
. 37 



232 



853,966 



. 70 
. 457 
. 1008 
748,768 
. 488 
. 876 
. 900 
. 26 
. 23 
. 688 
. 776 



TABLE OF GASES CITED. 



SIX 



Rtglna «. Deighton 

9. DodsoB • . ^ . 

— 9. EMtern Coontiof Railway OompaDy 



- V. EMt London Waterworks Company 
- «. Bast Stonehonse 

- V. Bodesall Biorlow 

- V, VfH 

- V. Oomperti 

- V. Grafton, Dnke of . • . 

- V. Great Western RaQwaj Gompanj 

- V. Grimshaw 

- «. Gnesl 

- V. Gnttridge 

- V. Hagan 

- V. Hainse 

.«. Halilkx 

- V. Harrowgate OommIssioD«n 

- V. Holbeek 

- V. Hunt 

- V. Irwin ..••.. 

- V. Jnstiees of Glamorganshire 
- «. » Hertfordshire . 
. 9. Middlesex 

- 9. Survey • 

. V, Wiltehire . 

- e. Kendall 



■ e. Kentmere ••••»• 

9. Eenriek ...... 

—a — 9, Kidwelly and Uanelly Oaaal and Tram- 

road Company 

e. Leaden Roothing • • . • 

V. Leith . 

«u LlaneUy 

«. London and North-Weetetn Railway 

Company 

V. Londondeiry and Cdeiahtie Railway 

Company 

■ V. Longwood 

9. _^-^ Chavohwardens and Over- 



5Q.R.896 . 

9 A. ik B. 704 
2Q.B.347 . 

10 A. A E. 631 
Q. B., June 6, 18M 
UQ.B.72 . 

11 A. A B. 607 
1 Q. B. 636 . 

Q. B. 834 . 
5 Dowl. A L. 688 
16 Q. B. 370, 1086 
10 Q. B. 747 . 

7 A. A B. 951 
9 Car. A P. »8» 471 

8 Car. A P. 187 
3 Car. A Kir. 388, 
13Q.B.111 . 
16 Q. B. 1013 
18 Q. B. 404 . 
13 A. A E. 130 

9 Irish Bq. Rep. 648 
13 Q. B. 681 
8 Q. B. 768 

16 Jorist, 907, Bail Court 
14Q.B. 884 . 
13 A. A E. 798, 798 

1 Q. B. 388, 383, 3 

17 Q. B. 661 
6Q.B.49 



371 



. 14 Q. B. note (a) 

13QftB. 181 . 
1 E. A B. 121 
17 Q. B. 40 . 

. 18Q.B. 884 . 



PAOS 

, 776 

. 834 

. 73 

. 386 

• &33 
40 

. 833. 



. 983 
. 886 
. 903 
878,988 
. 804 
. 336 
. 341 
. 340 
37 

83, 748, 766 
888, 877 

86, 749, 766 
. 488 
. 88 
. 633 
. 38 



. 469 

. 818 

888, 877 

. 884 



488 



83,766 
. 336 
47,649 

. 490 



of 

' V. Lydeard St Lawrenee 

-e. MarUn 

- «^ Mae End Old Town . 



13 Q. B. 998, 1008 
13 a B. 118 . * 
17Q.B.871 . . 



e. Morrison 

e.NeTitt 

«— «. Newman 

— ^- a. CConnor, V. 

«^ Cyerton 

■~^- V. Ozfosd, Gnardians of Poor of 

«.Feek 

— — V. Poor Law Commissioners, AUstonefiald 
bsorpoflatkm 



11 A. * B. 818 

9 Car. A P. 313, 316 

10 Q. B. 308 . 
14Q.B.349 . 
1 B. A B. 160 
8Q.B.463 . 



1 B. A B. 668 
6 Q. B. 18 

4 Q. B. 83 ^ 

8 Justiee of Peaee, 710 

9 A. A B. 688 



11 A. A B. 668 



. 849 
668, 888, 877 
682, 888 



. 636 

• 687 

. 877 

. 834 

. 336 

. 619 

. 363 
334, 883 

. 498 

. 467 

. 878 



467, 468 



TABLE OF CASES CITED. 



R6gina v. Poor Law Oomminioiioriy In ra Bright- 1 

helmsione j 

-InreStOilea] 



8 Q. B. 326 




V, Pott Shrigley 

«.Read 

— — V, RbyddUo . , . . . 
^— ^ ». RobiiMon ,...., 

V, St Andrew, Governor of . . , 

«. St Ebbei 

— ^-~ e. St Maiylebone 

— V. St Mary Sonthampton . 

— ». St Panoras • « . 
o. St Thomai, New Sanim 

9. Salford .- 

V. Soott 

— V. Seend 

V. Smith 

^^— V. Sonthampton I>oek Oompan^ 

-i* V. Taoolneatone 

— — V. Tithe CommiMionert .... 

e. Tordofl ..,.., 

— ^— V. Trafford ..,,.. 

— V, Treasury, Lords of . • • . 

V. Tyrwhitt 

V. Wigan 

0. York, Newoaitle, and Berwick Railway ] 

Company j 

Rex V. Aire and Oalder Narigation . 

^— V, Aylett # . 

— — V. Badeook ••.... 

— V. Barham ..•..., 

V, Barker 

V. Bath, Corporation of ... . 

V. Beedle 

V. Beverley, Gommi^onen for Lighting . 

». Bien 

V, Bird 

V. Birmingham, Reetor, Ao., of 

V. and Staffordshire Gas Light ] 

Company . . . « 
— ^ V, Boame .... 

V. BoyaU .... 

9, Bradford 

«. Bridgewater, Mayor, Ac, of 

— — «. Brighton Gas Light Company 
— — V. Chelsea Waterworks Company 

«. Chester, Bishop of . 

-^- e. Cottingham- .... 



17 Q. B. 445, 4eS 



» A. A E. 001 

12 Q. B. 148 
A. A E. 019 
14Q.B.827 . 
17 Q. B. 406 . 
Q. B. 78 . 
12Q.B.137 . 
10 Q. B. 299 . 
14Q.B. 815 . 
12Q.B.298 . 
12 Q. a 57 . 
12 Q. B. 100 . 
8 Q. B. 548 . 



12 Q. B. 138 

5 Q. B. 014 
14 Q. B. 587 
12 Q. B. 157 
14 Q. B. 459 

6 Q. B. 988 



4 B. A B. 422 
10Q.B.357 . 
12 Q. B. 292 . 
14 Q. B. 287 . 

15Q.B. 880 . 



8 B. A A. 139, 4 B. A Ad. 189j 
1 T. R. 03 . 
East, 359 . 
8 B. A C. 99 . 



A. A B. 888 
14 Bast, 009 . 
8 A. A B. 407, 470 

A. ik E. 040 

1 A. A E. 327 
13 East, 807 . 
7 A. A E« 254 

A. A B. 084 



7 A. A E. 58 



— - 9, Dawbeny 
— »- v.. De Berenger 



2 Bnrr. 832 . 
4U.AB, 817 
A. A B. 889 
5 B. A C. 400 
5 B. A Ad. 150 . . 
2 Stra. 797 . . 

7 B. A C. 015 
f 2 Stra. 1190, 1 Bott P. 
[ Othed. 

8 M. A S. 07 



PAOB 
.'457 



478, i74, 488 



802 



40, 45. r49, 755 
. 908 
. 038 
. 809 
. . 457 

• . 41 
. 44, 758 
. . 032 

• 808, 032 
. 032 

. 748,755 
. 491 

• 54,755 

• . 902 
84,225 
48,758 

. 488 
. 833 
. 1012 
. 905 
• 307 
. 150 



850 



141 



. 557 

. 505 

. 158 

. 57 

. 523 

• 301 

. 150 
558,800 

. 083 

. 023 

. 150 



L. 847, pL 858, 



225 

827 
507 
227 
400 
801 
858 
80 
550 

158 



TABLE OP CASES CITED. xxi 

PA6B 

Bix «. ]>iekeiuoii 1 Wms. Saimd. ISV b, Cth ed. . . 897 

— «. Dowlin . • 5 T. R. Sll . . . ' , « .488 

V. Bdmonton lM.ARob.34 167 

V. Ely, Biflbop of 8 T. R. 390, 888 35 

*— •. GUmorgtm, Mayor of . . .3 Smith's Rep. 8 984 

V. Great Clabton 8 B. A Aid. 410 840 

fF. Grost 8«lkeld 6 M. A 6. 408 . . . . 756 

«. Gregory 6 B. A Ad. 666 897 

9. Hidl 1 B. A C. 133, 387 .... 168 

«. Hanley 8 A. A B. 488, note (6) . . 180 

«.HaseU 18 Baft» 130 669 

V. mggini . ' 3 Bait, 4 ...... 888 

«.Hogg IT. R. 731 335 

«.Jamef ....... Cald. 468 881 

e.Joiief 4 B. A Ad. 845 878 

9. Leedf 4 B. A Aid. 498 840 

«.LiT«rpool 7 B. A 0.81 887 

«. Idrerpool Bxcbange, Proprietor! of . . 1 A. A B. 485 338 

-— ff. Maaehetter and Salford Watenroriu Com- 1 1 n ^ n ma 517 

pMy i 

«.Manlden 8 B. A 0. 78 489 

«. Mildenball Buk . . ^. . . 8 A. A E. 963 1009 

V. Mile End Old Town . • . . 4 A. A B. 198 840 

9. Milnrow, Cbapelwardena of . . 6 M. A S. 348, 353 . • . .838 

«.MiteheU 10 Baft» 611 761 

fr.Mo8ley 3 B. A 0.338 519 

p. Peny 5 T. R. 458 889 

«. Poor Law Oommisiioneri, In re PariBh I 5 a a n 1 458 480 



ofStw Paaeiafl 



In re PariBh) 

~^*7;n »^'»^''"i6A.*lt»4 46. 

chapel Union ) 

•.Price 8T.R.147 489 

9.PyweU 1 Stark. K. P. 0. 403 .... 884 

«. Ramsden 8 A. A E. 458 167 

e.Riehaidaon 1 M. A Rob. 403 888 

•. 9 Bait» 489 . ^ 983 

cRidgway 5 B. A Aid. 637 8ft 

V. Rirer Wearer Karigation . . . 7 B. A 0. 70, note («> . . . 887 

V. St Nieholae, Gloaeester . . Cald. 383, S. 0. 1 T. R. 733 note (a) . 335 

«. ^Leioeater . . . S A. A B. 79 489 

9, St Paaeraa Chnreb, Trnsteet of . . 8 A. A B. 635 488 

V. Salter's Load Sloiee CommiMionen . 4 T. R. 780 887 

iL Seward 1 A. A E. 708 878 

fi Shiewsbmy, Tnieteei for Paying . . 8 B. A Ad. 318 ,. • . . 517 

1. Somerton 7 B. A 0. 468 585 

V. Sweet .... «^0r . 9 Batt» 35 . 489 

«. Thatcher 1 DowL A R. 438 168 

fi Tomer '. 13 Eatt» 338 884 

ff.Ueklleld 6 M. A S. 314 640 

■. Upton on Serem 8 Oar. A P. 138 . • . . . 509 

«.WiUoaghby 4 A. A B. 143 • • ' • . .67 

•.Wrottetley 1 B. A Ad. 848 833 

BiehtfdB 9. I>yke 8 Q. B. 358 833 

«.Lewii 11O.B.1035 737 



xzu 



TABLE OP CASES CITBD. 



Ridge 9. HaidoMUo . . . 
Ridley v, Pljonoath Orinding aad Baking Com- 
pany ........ 

Ripley e. M'dim 

Roake v. Benn 

Roberts's Gsm 

. - e. Andrews 

9, Hay ward 

V, WUliams 



Robinson v. Peaoe 

Roe dem. Hamerton e. Mitton .... 

— ^ Wilkinson v. Trsnmarr 

Earl of Berkeley v. York, Arohbishop of 



PAaa 
8T. R.417 lU 

. 2Exoh. 711 142 

4Bzoh.845 186 

4Bligh.N. S. 1 S64 

8Atk.308, 313 ...... 417 

S W. BL 730, S. C. 3 Wils. 124 . . 697 

3 Car. ik P. 432 770 

776 
81 



Room 9, Cottam 
Rowe «. Osborne 
Rncker o. Cammeyer 
Russel V. Hammond 
Rossell V. Ledsam 
Ratter v Chapman 



2 Cro. M. A R. 661, 8. C. 6 Tjr. 682 
7Dowl. P.C.03 . • . . 

2Wils.S66 404 

Wille8,682 . . . * . • .400 

6Baet,86, 106 408 

1L.M.AP.720 949 



1 Stark. N. P. C. 140 
1 Esp. N. P. C. 106 
1 Atk. 13, 16 
14 M. A W. 674» 689 
8 M. A W. 1 . . 



113 
113 
410 
808 
616 



Salkeld *. Johnston 



Salmon o. Randall 

9. Smith 

Sanders e. Coward 

Sanderson v. Westley 

Sandiman e. Breach 

Savage v. Aldren 

Savile v. Jaekson 

Sayles o. Blane • 

Self V. Kennioot 

Sewell e. Jones . 

Sharp V. Warren 

Shaw V. Rowley 

Sheen v. Riekie 

Simpson v. Lord Howden 

Shrewsbury and BirminghamRailway Company v. 

London and Noryi- Western Railway Company 
Skingley e. Sorridge 
Slado 9. Milner . 
Slingsby's Case . 
Smith V. Adkins 

e. Lasoelles 

Somerville o. Lord Somerrille 
Southampton Dock Company v. Richards . 
Soath Yorkshire, Ac, Railway Company, In re 
Spalding e. More ...... 

Sparks «. Wood 

Sparrow v. Oxford, Worcester and Wolverhamp- ' 

ton Railway Company 

Spenof r v. Pany 



r 2 Com. B. 740, 2 Ezeh. 256, 1 Hare, 196, 

[ lHaUATwells,329,lifann.Aa.242 536 

2 Mylne A C. 439, 449 .... 860 

1 Wms. Sannd. 207 a, b, 6th ed. 

15 M. A W. 48, 66 



6 M. A W. 98, 100 

7 B. A C. 96, . 



2 Stark N. P. C. 232 

13 Price, 716 

14 jQ. B. 205 . 
2 Show. 506 . 
1 L. M. A P. 626 



6 Price, 131 



16 M. A W. 810 

6 M. A W. 176 
9 CI. A Pin. 61 

3 Uacn. A Gord. 70 

11 M. A W. 50*3 . 

4 Madd. 144 . 
3 Rep. 13 b . 
8 M. A W. 362 
2T.R.187 . . 



6 Yes. 750 

1 Man. A O. 448 . 
14 Jurist, 1093 (Q. B. BaU Court) 

2 Tidd's Prac. 814, 9th ed, 
6 Mod. 146 . 



16Q.B. 526 . 
3 A. A B. 331 



. 951 

. 438 

. 886 

. 619 

. 947 

. 439 

. 649 

. 185 

. 448 

. 100$ 

. 288 

. 585 
662,789 

. 661 

. 808 

. 739 

. 990 

. 594 

. 77© 

. 42 

. 776 

. 965 
88 

. 202 



851 
993 



TABLE OF OASBS dTES. 



XZUl 



PAoa 

0t Caiheriae, Maator, Gam of .... 8 Rep. 91 b * 139 

SUekpolo «. BeMimont 3 Yea. 88 922 

8tHid«i w. Standen S Yes. jnn. 689 354 

Stepaton 9. StapUton 1 Atk. 2 417 

Stannel «. Hogg 1 Wms. Saand. 228 . . .568 

Stikoman v. Dsirion . • • . 1 De G. A Sm. 90 . ... 649 



Stnlly V. Winson 
Bteother v. HatehinBon 
StartoD «. Eichardsoa 
Satton's Hoipital, Gate of 
8w««t V. Gator . 
SydsodT v. The Qneen 



lYern. 297 716 

4 New Ga. 88 ....*. 541 

13M. AW. 17 708 

lOBep. la,23a . . , . .618 

11 Sim. 572 289 

11 Q. B. 245 688 



T. 



Taylor v. Wilson 
Toather, Bz parto 
Tbompeon *. Ingham 
Thorahill v. Hall 
Thornton v. Charles • 

V, Kempster 

' •. Men 

Thorp V, Gole 

Thorpe V. Plowden 

Tffley's Case • 

Timms v. Williams 

Timothy v. Fanner 

nnniswood v. Pattison • 

Topo «. Hookin . 

Tonasaint «. Martinnaaft 

Townshend, Lord, v. Windham 

XDymbee v. Brown • 

Triqnet v. Bath . 

Tuibill's Case 

Taekey v. Hawkins 

Tomer e. Cameron's Goalbrook Steam 

pany 
Tomer, Beth, Case of 



Goal 



Com- 



5BjEoh.251 . . 


► . . . 788 


1 L. M. A P. 7 . 


. . . . 459 


14 Q. B. 710 . . 


, . . 188,201 


2 GL A Fin. 22, 38 


99 


9 M. AW. 802 . • 


. . . . 108 


6 Taont 786 . . . 


. 108 


M.AM.43 . . 


. . . 109 


2 Gro. M. A R. 367, B. C 


l.5T7r.l047 . 985 


14 M. A W. 520 . 


. . . 537 


2 Leaoh. G. G. 662 


. . 825 


3Q.B.413 . . 


. . . . 1009 


7 Com. B. 814 . 


. . . 441 


3 Com. B. 243 


> . . . 441 


2 W. BL 1019 


. . • . 411 


2T.R. 100 . . 


. . . . 991 


2 Yes. Sen. 1, 10 . 


. 409 


3Bxoh.ll7 . 


535 


3 Borr. 1478, 1488 


. • • . 191 


1 Wms. Saond. 67 


• . 184 


4 Com. B. 656 


. . . . 439 


5Exoh.932 . • 


. . • . 802 


9 Q. B. 80 . . 


. . • . 681 



V. 



Tanghaa V. Brani 



2 Ld. Raym. 1408 



. 203 



w. 

WaddfloTs V. Baroeti 2 New Ga. 638 297 

Wadsworth v. The Qoeen of Spain • • . 17 Q. B. 171 201 

Waiter Jones 1 New Ga. 656, 9 GL A F. 101 . 789 

Waker «. Snowe Palm. 359 417 

Walkei^ Dr., Case of Ga. K. B. temp. Hard. 212 . • .23 

0. Eastern Counties Railway Company 6 Hare, 594 849 

V. Holyday Gomyn's Rep. 272 716 

WaOis o. Haniion 4 M. A W. 538 581 



xziy TABLE OF GASES CUED. 



Wallop V. Lord Portamoatli • • • • 1 Sag. Pow. Zf7, 7tli ed. • . .154 

Walton V. Chandler 1 Com. B. 806 S85 

Warborton o. Loroland • ; . . • 2 Dow. A Clark, 480 • . .788 

' Ward V. Clarke U M. A W. 747 . . • . 6M 

Waters'! Case . * 1 Den. G. C. 866 666 

Weeton «. Woodeook 7 M. A W. 14 684 

Welbj o. Brown ..•••• 1 Bzch. 770 868 

West 9. Blakewaj 8 Man. A O. 729 186 

Westoby «. Day 2 B. A B. 606 216 

Wbeatley 9. Boyd 7 Bxeh. 20 696 

Wheeler V. Home . .^ • . • . WiUes, 208 708 

Whiteomb v. Whiting 2 Doug. 662 486 

Whiston V. Dean and Chapter of Roohester . 7 Hare, 682, 661 28 

Wigton, OTerseers of, V. Snaith, Overseers of . 16 Q. B. 406 . . '. • • 69,61 

Wilbraham v. Snow 2 Wms. Sannd. 47 b • . • .942 

Wildbor e. Rainforth 8 B. A C. 4 . • . ... .692 

Williams w. Great Western Railway Company . 8 M. A W. 866 864 

9.Millingtott 1H.BL8I 770 

Wood V. Dixie . 7 Q. B. 892 . . ... • .404 

V. Leadbitter ... . . * . 18 M. A W. 838 . ^ . • .681 

V, London, Mayor and Commonalty of . . 1 Salk. 397, S. C. Hol^ 896 . . • 26 

V. Wood 4Q.B. 397 81 

Woodroffe «. Doe dem. Danlell . . . . 16 M. ik M. 709 406 

Worsley «. Sonth Devon Railway Company . 16 Q. B. 689, 644 846 

Worthington v. Qrimsditoh . . . . 7 Q. B. 479 486 

Wright «.CatteU f S. C (not S. P.) 18 Bear. 81, 19 L. J. 

^ \ (N. S.) Ch. 627 .... 441 

Wynne e. Tyrwhitt 4 B. A Aid. 376 278 



Year Book . . HiL 8 H. 6, foL 18, B., 19 B. nL 6 

York and North Midland RaflwayOompanye.1 J 3^^ ^^j^. ^ ^ 

The Qneen ... . • • ) ' v / 



■••>G..ASES 

ABOUED INP 3>ETE£MINED 

THE QU E E N'S BEN C H, 

ni ' / .- 

(Bu\tx (Knm, 

XIY. VIGTOBIA. 1B61. 




(EASTER TERM CONTINUED FROM VOL. XYI.) 
The QUEEN v. The Dean and Chapter of ROCHESTER. 

King Henij VIII. foanded by ohuier the Cathedral Cbnroh of Rooheeter, to ooniiit of a Deaa 
and fix Prebendajiei, and he made eertain itatotei for their govemment. By Statute S6, a 
meeter waa to be chosen by the Dean and Chapter, to teaoh eertain. poot boye who, by the 
tame etatnte, were to be inetmcted in the Cathedral : and the mae ter, if found negligent or 
vnllt, wae to be removed. By Statute 85, if any offioer, of a deioription inolnding the mae ter, 
eommitted a slight offenee, he was to be eoireeted at the discretion of the Dean ; if a weighty 
offenee, £e was to be expelled byjthose who gave' him his admission. By Statute 88, the 
Bishop of Rochester for the time being was appointed Visitor, to see that the statutes and 
ordinances were observed, and with ftiU power to eonrene and interrogate the Dean, oanons, 
Biinor canons, clerks and other officers, on the articles contained in the statutes, and all other 
things touching the welfare and honour of the Cathedral ehnroh, to punish ascertained offimeef 
aoeording to their degree, and reform them, and to do all things which might seem neoessaiy 
to the extirpating of vices and which pertained to the office of a visitor. 

W., a sehoolmaster appointed under Statute 26, published a pamphlet) on Cathedral Trusts, 
aoousiog the Dean and Chapter of having misappropriated the Cathedral revenues of Rochester 
to their own benelit and the injuiy of poor persons entitled to share in them, and imputing to 
the then Bishop, formerly Dean of Worcester, that he had been guilty of similar misconduct as 
Dean, and had, as visitor, culpably, and with knowledge of the ikots, omitted to correct it in 
the Dean and Chapter of Rochester. The Dean and Chapter removed W. Arom his office fox 
this publication and the refleetions upon the Dean and Chapter and the Bishop, therein con- 
tained, pronouncing him guilty of a grave olTence, and unfit to be continued in the office of 
Kasler. They, however, under connsers advice, revoked the dismissal, but immediately 
afterwards cited W. to answer befora them for the same offence : and they afterwards dis- 
missed him again for the same publication. 

A asandamus having issued to rastora W., the Dean and Ch^ter made a return, and W. pleaded 
several pleas.^ The fkcU appeared on the record as above stated. The return alleged that W. 
had been removed, to wit, for lawful cause, and had not appealed to the visitor. W. pleaded 
that the Bishop had an interest in the cause of removal which disqualified him from acting as 
visitor; and by another plea he justified the publioation, and denied that he was lawfully dis- 
missed. On demurrer to the pleas. Held, 

L That the Bishop (if not interelted) was the proper visitor In this ease, for that Statute 86 did 
not withdraw it from the general authority given to the visitor by Statute 88, and the Dean and 
Chapter did not exercise a visitatorial authority in dismissing the Master. 

S. That the Bishop had not sooli an interest as disqualified him from acting as visitor. 

VOL. xvn. — 4 



1 REGINA V. DEAN, &c., OP ROCHESTER. E. T. 1851. 

8. That the proteentor, therefinra, ihoald hare appealed to the victor, and not proceeded by 
mandamus : And that, afBuming the diimissal to have ^>o^ improper, this Court waa not 
authorized to interfere on the alleged ground that the^D^tl^^d Chapter were acting in exeeea 
of their juriBdiotion. .•/-.*' 

Mandamus, directed to The Dean' to'd Chapter of The Cathedral 
^^, Church of Christ and thcf'fjBkssed Virgin Mary of Rochester. 
^-^ The writ suggested that B^^6rt*Whiston, clerk, was duly qualified 
for, and duly elected, n6iainat6d, appointed, licensed, allowed, sworn, 
and admitted to and .ijHo ,{he place and o£5ce of Head Master of the 
Grammar School of .bf^>nnexed to the said Cathedral Church, created, 
founded, established^ and endowed under and by virtue of certain letters 
patent of H^&rJ^ VIII., in which place and office he always behaved 
and governed' Utnselfwell and according to the statutes and ordinances 
made for ^^^anageimfent, ordering, direction, and government of the 
* ^gead^^tel\fb|F AeJiipl^ being of such School : yet defendants, with- 
out^^ny reasonable cause, and contrary to the said letters patent, sta- 
tutes, and ordinances, have unjustly removed the said R. W. from the 
said place and office, in contempt, &c., contrary to the statutes and 
ordinances for governing the said Grammar School, and to the great 
damage, &c., of the said R. W. The writ commanded the defendants 
to restore or cause to be restored the said R. W. to the said place and 
^nn office and the full exercise and enjoyment thereof, "^together with 

-' all the liberties, privileges, &;c., thereunto belonging; or show 
cause, &c. 

Return. That, before and at the time of the making of the letters 
patent after mentioned. King Henry VIII. was seised in his demesne 
as of fee, in right of his crown of England, of divers lands in Rochester 
in the county of Kent in the said letters patent more particularly men- 
tioned, the same lands having theretofore been the site of a certain Con- 
vent or Monastery of the Church of Saint Andrew the Apostle of Ro- 
chester ; and, being so seised, the said late King afterwards, to wit on 
18th June, 83 H. VIIL, by his letters patent under the Great Seal, 
and then made to the tenor and effect following of and concerning the 
said Convent or Monastery and of and concerning the said lands, 
founded and established, amongst other things, a certain Cathedral 
Church, viz. : The return then set forth the charter, by which Henry 
VIII. founded the Cathedral Church, to consist of a Dean and six Pre- 
bendaries, who were to be a body corporate, and to be called the Dean 
and Chapter of the said Cathedral Church ; and the King by the same 
charter ordained that the said Cathedral Church should for ever be the 
Episcopal see of the Reverend Father, &c., Nicholas Heath and his suc- 
cessors, bishops of Rochester. And His Majesty granted the site of 
the old monastery, with divers chattels, buildings, lands, &c., formerly 
belonging thereto, to the Dean and Chapter in puram et perpetuam elee- 
mosynam* The Dean was to have the power of appointing the inferior 



17 ADOLPHUS & ELLIS. N. 8. 8 

officers of the Cathedral, and of correcting and expelling them : saving 
to the King the right of nominating, on vacancy, the Dean, six p^ . 
^Prebendaries, and six poor men to be supported bj the Boyal '- 
bounty. 

The return then stated that, after the making of the letters patent, 
the King, in the 36th year of his reign, by indenture then made in pur- 
suance of a provision in the said letters patent, made, specified, and 
declared divers ordinances, rules, and statutes of and concerning the 
premises in the said letters patent mentioned, to the tenor and effect 
following, viz." &o. The return then set forth the statutes. Those 
material to the present case were as follows. 

4. Officio Decani. 

Quoniam decanum vigilantem esse decet, veluti oculum in corpore 
qui reliquis corporis membris baud negligenter prospiciat, statuimus et 
volumus ut Decanus qui pro tempore fuerit cum omni solicitudine prs&- 
sit, canonicos cseterosque ministros Ecclesiss omnes moneat, increpet, 
»rguat, obsecret, opportune importune instet, tanquam excubias agens 
in reliquum gregem su» cur» commissum : curet autem ut divina officia 
cum decoro celebrenter, ut conciones praescriptis diebus habeantur, ut 
pueri cum fructu ii^tituantur, ut eleemosynsa pauperibus distribuantur, 
ut in universum concredita sibi munera singuli fideliter obeant. Prae- 
terea Decani interesse debet ut cum prsssens fuerit honestam et compe- 
tentem familiam alat, pauperibus panem frangat, qufi in re ipsius con- 
scientiam oneramus ut bonestd et frugaliter in omnibus se exhibeat. 
Decanum autem insigniter miserum castigabit Episcopus: canonicoa 
vero insigniter miseros castigabit Decanus, qui etiam males et in officio 



[*6 



tardos per statuta corriget atque puniet. Pr»terea thesaurum 

*jocalia, Ecdesiss supellectilem omnem chartas et 

mnnimenta aliaque bona et res quascunque ad Ecclesiam pra- 

dictam spectantes, absque ull& illorum diminutione aut damno (salvo 

eorum rationabili usu), diligenter ao fideliter dispenset, dispo- 

nat ac custodiat, atque ab aliis quorum intererit illud agere dispensari, 
disponi ac custodiri faciat, ut ea omnia successori suo integra relinquat. 
Denique statuimus et volumus ut in omnibus causis gravioribus, veluti 
in feodi concessione, terrarum dimissione, et aliis id genus, Decani si 
prsesens fuerit consensus obtineatur ; qui si fuerit absens, mode intra 
regni nostri Angliae limites degat, consensus ejus requiratur. 

Statute 25 directed that there should be eight choristers, for whose 
instruction, tam morum modestift qu&m canendi peritifi, there should be 
elected, by the Dean (or the Vice Dean in the Dean's absence) and 
Chapter, a clerk, duly qualified and sworn, who, si negligens aut in 
docendo desidiosus inveniatur, post trinam monitionem ab officio depo* 
natur. 



6 REGINA V. DEAN, *»., OP ROCHESTER. E. T. 1851. 

26. De PuerU GrammatieU et earum Iftfarnuxtaribui* 

Stataimas et ordinamns ut ad electionem et designationem 

Decani, aut, eo absente, Vice Decani, et Capitoli, sint perpetnd in 
Ecclesifi nostrfi Boffensi viginti paeri pauperes et amicornm ope desti- 

tati, de bonis ecclesisB nostrse alendi Atque hos pueros Tolumos 

impensis EcclesisB nostrsB ali, donec^mediocrem Latina& grammaticse 

notitiam adepti faerint, cai rei dabitur quataor annomm spatinm ...i 

Statuimus prsetereft ut, per Decannm, vel, eo absente, Vice Decanum, 
*R1 ^^ Capitnlum, anas eligatar Latin^ et (}rsec% doctas, "^bonae famas 
'^ et pi» yitae, docendi facultate imbatas, qui tam viginti illos Eccle- 
sisd nostra pueros quam alios quoscunque Grammaticam discendi gratifi 
ad Scholam nostram confluentes pietate ezcolat et bonis Uteris exornet. 
Hie in SchoI& nostr& primas obtineat, et Archididasculus sive praeci- 

puus informator esto (Direction, is then given for the election, 

% also by the Dean and Chapter, of an under master.)— Hos verd informa- 
tores puerorum volnmus ut regnlis et docendi ordini quern Decanus et 
Gapitulum praescribendum duxerint diligenter ac fideliter obsecundent. 
Qudd si desidiosi aut negligentes aut minus ad docendum apti inveni- 
antur, post trinam monitionem ft Decano et Capitulo admoneantur, et 
ab o£5cio deponantur. Omnia autem ad functionem suam spectantia se 
fideliter pra&staturos Juramento promittent. « 

85. De Corrigendis Exeemfyui. 

Ut in Ecclesi& nostrfi morum integritas servetur, statuimus et volu- 
mus ut si quis minorum canonicorum, clericorum, aut aliorum ministro- 
rum, in levi culp& deliquerit, arbitrio Decani aut, eo absente, Vice 
Decani corrigatur. Sin gravius fuerit delictum, (si justum judicabitur) 
ab iisdem expellatur a quibus fuit admissus. Si quis autem canonicorum 
in offensfi aliqu& aut crimine undo EcclesiaD nostras grave scandalum 
oriri possit culpabilia inventus fuerit, is per Decanum aut, eo absente, 
Vice Decanum, admoneatur. Qudd si tertid admonitus se non emenda- 
verit, apud Episcopum visitatorem suum accusetur, et illius judicio cor* 
rigatur. Pauperum verd, quoties' deliquerint, corr^ctionem Decani, 
aut, eo absente. Vice Decani, judicio reservamus, qui si incorrigibiles 
^.^ permanserint, per Decanum cum capituli ^Consensu a nostrft 

^ Ecclesifi expellantur et omne in eft emolumentum perdant. 

88. De Visitatione JEcelesice. 

Nullum opus est aded pi% coeptum, adeo prosper^ productum, adeo 
fidelitur consummatum, quod non facilisubruatur ac inourifi et negligentift 
Bubvertatur; nulla tam sancta et firma statuta conduntur quin temporis 
diuturnitate in oblivionem et contemptum veniant, si non adsit continua 
vigilantia et pietatis zelus : Quod quidem ne in Ecclesift nostrft unquam 
fiat aut evenire possit, nos, Episcopi Roffenm qui pro tempore fuerit fide 
ac diligentia freti, eundem Ecclesi» nostras Cathedralia Boffensis Yisitato- 



17 ADOLPHUS & ELLIS. N. S. 



rem constitotmoB, yolentes ao mandantee at pro ChriBtianfi fide et 
ardente pietatis zelo vigilet et gnaviter curet ut h»o statuta et ordini^ 
tiones ^cclesiss noatrie i, nobis edit» inviolabiliter observentur, posses- 
aiones et bona tarn spiritnalia quam temporalia prospero statu floreant, 
jura, libertates et privilegia conaerventur et defendantur. Atque, at 
luec ita fiant, stataimos et volumas at Episcopos ipse, quoties a Decano 
Tel a duobos canonicis rogatas fuerit, imd, licet non rogatus, semel 
tamen qaovia triennio, ad Ecclesiam nostram in personfi propri&y nisi 
grandis obstiterit necessitas, alioquin per cancellarium suum, accedat, 
Decanam, canonicos, minores canonicos, clerices, cseterosqae omnes 
Ecclesiae nostrsd ministros, in locam congraum convocet. Gui quidem 
Epiacopo, presentis Statuti vigore, plenam concedimas.potestatem et 
aactoritatem at saper singulis articulis in statutis nostris contentis, et 
quibuscunque aliis articulis statum, commodum aut honorem Ecclesise 
nostrse concernentibus, Decanum, canonicos, minores canonicos, c»ter- 
oeque ministros et cogat et eorum ^quemlibet per jaramentum p^^ 
Ecclesise prsestitum veritatem dicere de omnibus delictis et crimini- ^ 
bus quibuscunque. Comperta autem et probata, juxta, delicti et criminis 
xnensuram, puniat Episcopus, atque reformet, omniaque faciat quae ad 
yitiorum resecationem necessaria yidebuntur, queeque ad Yisitatoris 
officium de jure pertinere dinoscuntur. Quos quidem omnes, tarn 
Decanum quam canonicos, et alios Ecclesiee nostra ministros, quoad 
omnia prsemissa volumus et mandamus ipsi Episcopo parere et obedire. 
Statuimus autem, in virtute juramenti Ecclesise nostree praestiti, ut 
nemo contra Decanum aat canonicos aut aliquem ministrorum Ecclesiss 
nostras quicquam dicat et enunciet nisi quod verum crediderit, aut de 
qao publica vox vel fama circumlata fuerit. Yolumus praeterea ut 
Decanus, communibus Ecclesiaa nostras sumptibus, Episcopo visitanti, 
octoqne personis comitate, unam, aut ad summam duas refectiones intra 
Ecclesiae nostras aedes preparet et apponat. (Provision is then made 
for referring any dispute on the construction of the statutes to the 
Archbishop of Canterbury : and the Visitor and all others are forbidden 
to establish new or dispense with existing statutes.) Inhibemus etiam 
Decano et Canonicis Ecclesisd nostras ne hujusmodi statuta recipiant, 
Bub pcenfi perjurii et amotionis perpetuas ab Ecclesifi nostrft. Reser- 
Tamus tam^n nobis et successoribuB nostris plenam potestatem et 
aactoritatem statuta haac mutandi, alterandi, et, si videbitur, etiam nova 
oondendi. 

The return then made averments to show that the recited statutes 
were among those statutes of Cathedral and Collegiate churches which 
are confirmed by stat. 6 Ann. o. 21, s. 1. And it stated that, from the 
time *of thjS making of the said statutes hitherto, the Bishop of ^^q 
Bochester for the time being has been, under and by rirtue of the *- 
said statateB and the said letters patent, the Visitor of and in respect 
of the said Cathedral Church, as in the Bame statuteB mentioned : That 

o2 



9 REGINA V. DEAN, 4c., OF ROCHESTER. E. T. 1851. 

the said Robert Whiston was elected Head Master under and by yirtne 
of the said statates and not otherwise : that the school was the same 
school in the said statates mentioned : that the letters patent mentioned 
in the writ are those mentioned in the return : And that, the said R, 
W. having been before the issuing of the said writ removed from the 
said Cathedral charch and from his said office or employment of Head 
Master as aforesaid, to wit, for lawfal caase in that behalf, he the said 
R. W. has not appealed to the Bishop of Rochester for the time being, 
as it was lawfal for him to do if he had so thought fit : and that, before 
and at the time of the said removal, and of issuing the said writ, the 
Right Reverend George Murray, by Divine permission Lord Bishop of 
Rochester, was, and thence hitherto has continued to be, and is, the 
Bishop of Rochester. 

Plea 1. As to so much of the return as relates to the removal of R. 
Whiston for lawful cause : that the cause for which he was so removed 
from the said Cathedral Church and from his said office or employment 
of Head Master was not a lawful cause in that behalf in manner and 
form, &c. Conclusion to the country. 

Plea 2. As to so much of the said return as relates to the said R. 
W. not having appealed to the Bishop of Rochester : the said R. W. 
says and repeats all the averments in the next succeeding plea herein- 
after contained, so far as the same relate to the cause of removal of 
^^^^ the said R. W. in the next succeeding plea mentioned, *as if they 
^ were herein repeated ; each and every of which averments, and 
each and every of the facts, matters, and things averred by those aver- 
ments, the said R. W. here avers to be true. And the said R. W. says 
that the matters and things in the said pamphlet averred, meant, and 
intended to be implied and understood, were and are true. And that 
the said cause of removal in the next succeeding plea mentioned, (viB*) 
the writing, printing, and publishing of the pamphlet therein mentioned, 
by the said R. W., in manner and form as in the same plea mentioned, 
is the said cause of removal in the said return alleged as the cause of 
removal of the said R. W. from his said office of Head Master, as ia 
the said return mentioned, and not any other or different cause what- 
soever. And that there never was any cause for the said removal of 
the said R. W. other than the said writing and causing to be printed 
and published the said pamphlet by the said R. W. as in the same plea 
mentioned. That the Bishop of Rochester mentioned in the said 
pamphlet, and the Kshop of R. mentioned in the said plea, is one and 
the same person, and was at the time of the said writing, printing, &G., 
and thence continually hitherto has been, and still is, the Bishop of 
Rochester for the time being to whom it is alleged in the said return 
that it was lawful for the said R. W. to have appealed ; and the same 
Bishop of Rochester was formerly the Dean of Worcester in the said 
pamphlet mentioned, as and when in the said pamphlet mentioned, and 



17 ADOLPHUS & ELLIS. N. S. 10 

is the person therein mentioned as having combined in his own person 
the offices of Dean of Worcester and Bishop of Rochester : and that all 
the matters and things contained in the said pamphlet which relate to 
the alleged improper application of the funds of the said Cathedral 
Charch of *Worce8ter were written and caused to be printed and ^^^ ^ 
published by the said R. W. as aforesaid of and concerning the '- 
B«id Bishop of Rochester as such former Dean of Worcester as afore- 
•aid. And that the words of the said pamphlet, next hereinafter men- 
tioned and set forth, vis. 

" SiaJl we must not oompassionate the boys at Canterbury too much, some ^itj is 
wanted for the forty at Worcester, who are in a worse plight Instead of 21, 13«. 4d. 
they get only 5s, lOd. each, for 21. 2a. 6d. is taken from each boy and given to the 
aeoond master, and 5s. more is further alienated as taken from them and given to 
the Head Master. The result of whieh is, that the Head Master has a less stipend 
than the second, and that the forty boys at Worcester, instead of being maintained 
at the ccfsts and charges of the Church, get 5s. lOd. each ; and yet the income of the 
late Dean of Worcester was raised from 1002. to 14862. 11«. 9<2., and that of each 
prebendary from 202. to 6262. Ss. Id., while the 22. Us. 4d. was cut down to 5s. lOd. 
Sorely then the forty boys of Worcester may join the fifty at Canterbury, and, in the 
language of the Chapters of England, 'urge the manifest injustice of taking from 
one what is his, and giving it to another whose it is not ;' unless indeed they prefer 
the heathen moralist, and quote their Cieero, and say of the transfers or * conveyances' 
by which they suffer, 'Quid aliud est aliis sua eripere, aliis dare alienaT As for my- 
self, I vrill not venture to express what plain dealing and plain speaking men will 
think and say of such doings by dignitaries of the Church, one of whom, having 
once combined in his own person the offices of Dean of Worcester and Bishop of 
Bocheeter, has, in the latter capacity, been formally called upon, as he is by a solemn 
obligation required, to enforce the observance of statutes identical with those which 
he had, as Dean of a Cathedral, himself neglected to ' maintain,' even though ' a solemn 
oath was administered to him on his admission, binding him to maintain these 
statutes to the utmost of his power ;' neglect indeed which might well provoke the 
Bishop of London to declare ^at he was ' unable to undeihrtand how certain parties, 
who insisted so strongly on the steingent nature of his oath as Bishop, should as 
J^eans and Prebendaries have found it so easy to loosen the obligation of their 
own.'" 

were written, and cauaed to be printed and pnbliahed by R. W., of and 
concerning the said Bishop of R. for the time being, and of and con- 
eeming the condact of the said Dean and Chapter of Worcester during 
she time that the said Bishop of R. was snch Dean of Worcester as afore- 
flttidy *in and with snch sense and meaning as follows, vis. &c. The ^^^ ^ 
plea then recited the same passage with innuendoes, applying seyeral '- 
expressions above set forth (and among others the words << late Dean of 
Worcester," and ^<one of whom," and << certain parties") to the Bishop 
of Rochester. It then gave, with innuendoes, a further extract from 
the pamphlet, in which, after other reflections on the Bishop, statute 
88y De Yisitatione Ecolesise, was recited, and the writer proceeded: 

''Clearly, then, Henry YIII. did not intend that the privilege and duty of visita- . 
aion should be a name and delusion, but something real, praetioal, and substantial, 
for all wrongs effeotoal and speedy redress in a ' Court at home,' and pro- 



12 REGINA V. DEAN, &o., OF ROCHESTER E. T. 1851. 

▼iding against all abnaes the oorreetioii if not the prevention of a fiiend, a proteotor 
and a judge. But the Bishop of Rochester" (meaning the said Bishop of Rochester) 
** has not been so ; he did not interfere in 1839, when," &o. 

The passage went on to impate neglect of daty to the Bishop as Visi- 
tor in several instances, and, among others, in the case of an appeal by 
the defendant himself; adding : 

"When a Visitor refuses to hear and determine an appeal duly made to him, com- 
mon law points ont the remedy, a mandamus of the Court of Queen's Bench, to com- 
pel him ; but no one would desire to extort a decision from an unwilling judge," 
(meaning the said Bishop of Rochester), " who has himself been a party to anything 
Hke what the complainant appeals against" (meaning that the said Bishop of 
Rochester had, as the fact was, been guilty, as such Dean of Worcester, of improper 
conduct similar to that imputed in and by the said pamphlet to the said Bean and 
Chapter of Rochester). "I do not wish to do so," Ac. 

The plea then averred that defendant wrote and published the pamph- 
let with the intent and for the purpose of thereby showing, as the fact 
was and is, that the Deans and Chapters of various Cathedral churches 
in this kingdom, including the Dean and Chapter of Rochester, and the 
^- Q^ Dean and Chapter of Worcester during *the time the said Bishop 
•' of Rochester was Dean of Worcester, have not, respectively, duly 
or properly applied, expended, or disposed of the revenues of the said 
Cathedral churches respectively, accorc^ng to the statutes or intentions 
of the respective founders. That the facts alleged, set forth, or referred 
to in the said pamphlet in support or explanation of such charges of 
misappropriation or misapplication of revenues by the said Dean and 
Chapter of Worcester are of the same nature and character as the facts 
therein alleged, &c., in support or explanation of the like charges 
against the said Dean and Chapter of Rochester. That the said Bishop 
of Rochester was such Dean of Worcester as aforesaid within the space 
of six years now last past. That defendant so wrote and published the 
said pamphlet and the said words so hereinbefore set forth with the in- 
tention of attributing to the Dean and Chapter of Worcester, during 
the period (hat the said Bishop was such Dean of Worcester as afore- 
said, the same identical neglect and improper conduct with respect to 
the said Cathedral Church of Worcester, and in, ibout, and with respect 
to the management, disposal, and application of the said funds and en- 
dowments relating thereto, as are charged or imputed against or to the 
said Dean and Chapter of Rochester with respect to the said Cathedral 
Church of Rochester, and in, about, &c., the said management, &c., and 
misapplication of the funds and endowments relating thereto ; and that 
all the matters and things in the said pamphlet contained, condemna- 
tory of the conduct of the said Dean and Chapter of Rochester in rela- 
tion to the matters concerning them, as in the said pamphlet set forth, 
were and were intended to be equally condemnatory of the conduct of 
m-iATi ^^® ^^ Bishop as such *Dean of Worcester as aforesaid in rela> 
-' tion to the matters concerning the said Dean and Cathedral Church 



17 ADOLPHUS & ELLIS. N. S. 14 

of Worcester as in the said pamphlet set forth : All which matters and 
things, 80 written, &c., of and concerning the said Dean and Chapter of 
Worcester, were true in substance and fact, and were so written, &c., 
with the intent and in the manner in the said next succeeding plea 
mentioned; of all which the said Bishop of Rochester for the time 
being, before and at the time of the said removal of the said R. W. in 
the said return mentioned, and at the time of the making the said re- 
turn, had notice : That divers passages in the said pamphlet contained 
were written and published with the intention of imputing to the said 
Bishop, as Visitor of the said Cathedral Church of Rochester, a know- 
ledge of the misapplication of the funds and violation of the statutes of 
the said Cathedral Church by the said Dean and Chapter of Rochester, 
as well as a community of actions and proceedings with the said Dean 
and Chapter in the matter of the said appeal of the said R. W. ; and 
that the said Dean and Chapter have alleged and declared under the 
common seal of the said Cathedral Church that they removed the said 
R. W. from his said office in consequence of his having written and pub- 
lished in the said pamphlet passages (untruly alleged to be) scandalous 
and libellous, and directed as well against the Dean and canons of the 
said Cathedral Church as against the Bishop of the diocese, and like- 
wise against the Deans and canons of other Cathedral Churches. 

That, by reason of the said several premises, the said Bishop of Ro- 
chester for the time being had at the time of the said removal of R. 
W., and from thence hitherto continually has had, and still has, such 
an interest in the ^said cause of removal as to disqualify him from ^^^ . 
acting as such Visitor as aforesaid : and that, by reason of the ^ 
premises, the said R. W. ought not, nor was he bound or required by* 
the said letters patent, &c., and statutes, or otherwise by law, nor was 
it necessary or proper for him according to the true intent and mean- 
ing of the said letters patent, &c., or otherwise according to law, nor 
eoald he nor ought he, to have appealed or to appeal to the said Bishop 
in order to obtain redress in respect of the said removal or of the said 
cause of the said removal or otherwise, in manner and form as in the 
said return alleged. Verification. 

Plea 3 stated the election and admission of R. Whiston by the Dean 
and Chapter to the office of Head Master; that he accepted and 
entered upon the same, and continued in it till his removal after men- 
tioned; averments of R. W.*8 good conduct and ability, and desire to 
continue in the office, and denial of his having been guilty of any grave 
offence in morals or in manners, or otherwise, within the meaning of 
the words <« gravius delictum" in the statute De eorrigendis exeesBtbtu^ 
or the meaning of any of the other said letters patent, statutes, &c. ; 
or of any offence or supposed offence except as after mentioned. The 
plea then made specific averments of certain alleged facts referred to 
in the after-mentioned pamphlet, and imputed to the Dean and Chap- 

YOL. XVII.— 6 



15 REGINA V. DEAN, &c., OF ROCHESTER. E. T. 1851. 

tor, in substance, that they had not made proper allowances to the 
scholars and students, and had unduly increased their own emoluments. 
It then stated that defendant had represented to them that the sta- 
tutes, JLC, were not complied with in respect of the allowances to the 
scholars and students, and requested them to augment the said allow- 
^.^^ ances, hut that they had neglected and ^refused to do so: that 

-^ he thereupon appealed to the Bishop of Rochester, requesting 
him to cause such augmentation to be made (of which appeal he gave 
notice to the Dean and Chapter); but that the Bishop «« wholly ne- 
glected and refused to enter, inquire, or adjudge upon or into the mat- 
ters referred to or contained in the said appeal, or other the premises :" 
And that, afterwards, riz., on 26th May, 1849, he caused to be printed 
and published a pamphlet of and concerning the premises, entitled 
«« Cathedral trusts and their fulfilment,'* being the book referred to in 
the two deeds poll after mentioned, and which book was in the words 
and figures following. The plea then set out the whole pamphlet, and 
added several averments, applying and verifying the statements con- 
tained in it, and declaring that he at the time of publication believed 
them to be true^ and still believes so ; that they were and are subjects 
of public talk and rumour ; that he, at the said time, believed that he 
might lawfully and without violation of the said statutes or breach of 
his duty as Head Master publish th^ same, and hoped that his doing so 
would produce correction of abuses : And it averred that the publishing 
of the said pamphlet was for the public good; and that defendant 
would have forborne to publish, or would have withdrawn or corrected, 
any of the statements, if he- had been reasonably informed that they 
were inaccurate ; of all which, &c. (notice to the Dean and Chapter). 

That, afterwards, viz., on 28th June, 1849, the said Dean and Chap- 
ter, at a meeting of the said Dean and Chapter in Chapter then assem- 
bled, did, against the will of the said R. Whiston, and by reason of m 
supposed ofience alleged by the said Dean and Chapter to have been 
^^.-. committed by the said R. W. by reason of ^his having so written 

■^ and caused to be published the said pamphlet, resolve and order 
that the said R. W. be forthwith amoved, removed, deprived, and dis- 
placed of and from the said office of Head Master, and of and from all 
houses, lands, profits, &c., to the said office belonging, &c. And that, 
after the making of the said order and resolution, viz., on the day and 
year last aforesaid, the said Dean and Chapter, against the will of the" 
said R. W., made a certain deed-poll of them the Dean and Chapter, 
sealed with their seal, bearing date, &c., and delivered a copy of the 
same to the said R. W. The deed was then set forth, commencing as 
follows. 

"To all to whom these presents shall come, the Dean and Chapter," &c., "send 
greeting. Whereas Robert Whiston, Clerk, M. A., Master of the Grammar School 
of tiie said Cathedral Church, has lately written, and caused to be printed and pub- 



17 ADOLPHUS & ELLIS. N. S. 17 

lished, a pamphlet entitled ' OUkedral TnuU and their Julfilmeni,* of which the 
scope and tendency are to oast odium on the Dean and Chapter of the said Cathedral 
Church and the Dean and canons thereof individually, and to hold them up collec- 
tively and individually to the reproach and contempt of the subordinate members 
of the Cathedral, the inhabitants of the City and Her Majesty's subjects in general, 
and which pamphlet contains many scandalous and libellous passages directed 
against the Dean and Chapter of the said Cathedral Church and the Dean and canons 
thereof individually, and also against the Lord Bishop of the Diocese, the Visitor of 
the said Cathedral church, and likewise against the members of divers other Cathedral 
churches ; particularly at page 42, where the Dean and Chapter of the said Cathedral 
church of Rochester are charged with a violation of ordinances all of which they 
have solemnly sworn to observe, and with suppressing, to their own profit, offices and 
payments meant for the benefit of the poorer members of their cathedral : And at 
page 43 the following words: ' Not only do the Dean and Chapter of Rochester dis- 
Tegard the statutes, and loosen the obligation of the oaths for which so much 
reverence has been professed, but they also violate the law :' And at page 49, after 
setting forth the words of the respective oaths of the Dean and canons, the writer 
proceeds : * Such are the oaths taken by the Dean and canons of Rochester : and 
I assert that, after taking them, and after pleading the statutes and ordinances 
of their founder, and although bound to keep the latter, every individual member of 
the Chapter by the strongest and most sacred ties, they notwithstanding continue to 
swell their dividends by disregarding *their statutes and loosening the obliga- r^-io 
tion of their oaths : this assertion, a very grave and serious one, I shall prove ■- 
in detail hereafter :* and at page 92, in treating of the stipends of the foundation 
Scholars, the writer observes: 'In one case only, that of Durham, has even an 
approximation been made to the fulfilment of this duty ; in all the rest it has been 
entirely disregarded, and, in the cases of Canterbury, Worcester, Ely, and Rochester 
(till 1842), under aggravated circumstances of malversation:' And at page 93, 
after stating that the cases of Ely and Rochester have been pre-eminently bad, and 
quoting from a declaration said to have been signed by an existing Canon of Rochester 
for his brethren, the writer proceeds in the following terms, speaking especially of 
the Dean and Chapter of the said Cathedral church of Rochester : ' It is not, I think, 
too much to say that such acts vrith such words are 'contra fidem, contra jusjuran- 
dum, contra rempublicam/ And, at page 100, the writer proceeds and alleges : ' such 
was the state of things in 1831 and 1834 ; and I feel that I am not using language 
too harsh in affirming that the then apportionment of the Cathedral funds between 
the Chapters and their schools displays (except at Westminster) a disregard of justice 
and a preference of money to principle, which in ordinary cases of trust would be 
visited with the severest reprobation if not with the penalty of restitution ; but the 
trustees in this case are dignified and beneficed clergymen,' " Ac. (The deed recited 
more of the same passage, and another from page 102, the language and imputations 
in which were similar to those in the passages above set forth.) "And whereas the 
laws of this realm provide a remedy for any wrong or grievance that may exist, and do 
not permit any man openly to vilify the character of another, or to impute to him 
wicked motives and intentions : And whereas the said R. W., Master,'' ^., *' by 
writing and causing the above pamphlet to be printed and published, has been guilty 
of a very grave offence, and, in the judgment of the Dean and Chapter, has proved 
himself to be utterly unfit and unworthy to be any longer intrusted wiUi the instruction 
and superintendence of the foundation boys of their Grammar School, and the said 
]>eaii and Chapter in Chapter duly assembled have resolved that he is unfit and 
unworthy to continue in the office of Master of the Grammar School of the said 
Cathedral Church of Rochester, and that he hath by such his misconduct as aforesaid 
forfeited all the rights," Ac., " of that office, and have resolved and ordered that he 
be forthwith amoved, removed, deprived, and displaced of and from the office of 
Master of the said Grammar School, and of and from all houses, lands, profits," Ac, 



18 REGINA V. DEAN, 4c., OF ROCHESTER. E. T. 1861. 

''to the said office in anywise incident, belonging, or appertaining: Now knowje 
that we, the Dean," &c., " have, by and with our whole and motual assent, consent, 
and agreement, deprived, amoved, removed, and displaced, and by these presents for 
ourselves and our successors do deprive, amove," Sec., " the said R. W. of and from 
the said office," &c., " and of and from all houses, lands, fees, stipends," &c., ** to 
the said office and place incident, belonging," &o. *' In witness," &c. 

^-Q, *The plea then averred that the Dean and Chapter did after- 
-*, wards dispossess and amove R. W. for no other cause than that 
alleged in the deed. That afterwards, viz. 11th August, 1849, they 
gave him a written notice that, by the advice of counsel, they bad can- 
celled the deed, and did not intend to proceed further under it, and 
that they did, at the time then present, acknowledge and recognise R. 
W. as the Head Master. And they further informed him that they in- 
tended forthwith to serve him with a citation to answer the charge of 
having, contrary to the statutes of the said Cathedral Church, and to 
his duty as a minister thereof, written and published a pamphlet enti- 
tled « Cathedral trusts and their fulfilment," containing false and scan- 
dalous imputations on the Dean and canons of the said Cathedral 
church collectively and individually, and of other Cathedral churches in 
this Kingdom ; and that th^y would be ready to hear his defence at 
such time and in such manner as in the instrument of citation should be 
expressed. 

The plea went on to allege that K. W. was reinstated in the said office, 
and that, while he was such Head Master, viz. on 10th October, 1849, 
the Dean and Chapter in Chapter assembled, without the leave, &c., 
and against the will, of R. W., and without any just, lawful, or proper 
process or proceeding, issued, taken, or pursued by the Dean and Chap- 
ter in that behalf, «did adjudge and determine: That the said R. W., 
then being such Head M^^ter of the said school as aforesaid, and as 
such one of the ministers of the said Cathedral church, had been guilty 
of a great offence by writing and causing to be published the said 
pamphlet as aforesaid, and had thereby rendered himself liable and ame- 
*201 °^^'® ^^ ^^® ""penalties, punishments, and deprivation which the 
^ said Dean and Chapter of the said Cathedral church were by the 
said statutes or any of them, and especially by the statute JDe c&rrigen" 
dis exceh8ibu9j or by any other power or authority whatsoever, autho- 
rized or empowered to inflict, and that he the said R. W. had thereby 
proved himself to be unfit and unworthy to be intrusted with the in-« 
struction and superintendence of the foundation boys of the said school, 
and unworthy to be continued in the said office of Head Master of the 
said school or in the receipt or enjoyment of the advantages, privi- 
leges, and emoluments of the said office ; and the said Dean and Chap- 
ter, so then in Chapter assembled, did then, without the leave and 
license and against the will of the said R. W., and without any just, 
lawful, or proper process or proceeding issued, taken, or pursued by 



17 AD0LPHU8 & ELLIS. N. S. 20 

the said Dean and Chapter in that behalf, further adjudge, order, and 
determine that the said R. W. should in due course be amoved from and 
deprived of the said office of Head Master of the said grammar school 
of the said Cathedral church, and the advantages, privileges, and emo- 
laments thereof." And the Dean and Chapter afterwards, viz. on 19th 
October, 1849, made and executed, and delivered to R. W., a certain 
other deed poll under their common seal, beariug the last-mentioned date, 
and in the words and figures following, &c. The deed was then set 
out. 

It began, "To all," &c. (as before), and recited that R. W. had been 
duly cited and summoned, by an instrument of citation under the com- 
mon seal of the Dean and Chapter dated 13th August, 1849, to appear 
before them in Chapter assembled, on 14th September, 1849, to an- 
swer, in manner in the said instrument expressed, *the charge of ^^^^ 
having written and caused to be published a certain pamphlet en- '- 
titled, &c., containing divers passages of a scandalous and libellous na- 
ture, reflecting on the sa^d Dean and Chapter in general, and on the 
iudividual members in particular, as in the said instrument was particu- 
larly expressed. The deed then went on : 

*' And whereas seyeral proceedings have, since the 14th day of September, 1849, 
been had in the matter of the said citation ; and whereas, at a Chapter holden on 
the 10th day of October, 1849, the said Dean and Chapter of the said Cathedral 
church, having proceeded to the examination and investigation of the several state- 
ments, and charges in the said instrument of citation contained, and having duly 
and fally examined, investigated, and considered the same, and also the several edi- 
tions of the said pamphlet in the s^id instrument of citation mentioned, and having 
seen office copies of the several affidavits of the said R. W. sworn in the cause now 
depending between the said R. W. as plaintiff and the said Dean and Chapter as 
defendants in the .High Court of Chancery, did, by virtue and authority of the 
statutes of the said Cathedral church, some or one of them, and especially the statute 
entitled De eorriffendis exeeatibuStSXid by virtue of all other lawful power and authority 
whatsoever enabling them the said Dean and Chapter of the said Cathedral church 
lor the maintenance of good order and discipline therein and amongst the several 
members and ministers of the same, adjudge and determine that the said R. W., then 
being such Head master of the said school, and as such one of the ministers of the 
said Cathedral church, had been guilty of a grave offence by writing and causing to 
be published the said pamphlet, and had thereby rendered himself liable and 
amenable to the penalties, punishments, and deprivations which the said Dean and 
Chapter of the said Cathedral church were by the said statutes or any of them, and 
especially by the said statute *De oorrigendia excessibus' or by any power or 
authority whatsoever, authorized or empowered to inflict, and that he had thereby 
proved himself to be unfit and unworthy to be intrusted with the instruction and 
superintendence of the foundation boys of the said school, and unworthy to be con- 
tinued in the office of Master of the said school or in the receipt or enjoyment of the 
advantages, privileges, and emoluments of the said office: and the said Dean and 
Chapter then in Chapter assembled did further adjudge, order, and determine that 
the iaid R. W. should in due course be amoved from and* deprived of the office of 
Head master of the Grammar school of the said Cathedral church, and the advantages, 
pritileges, and emoluments thereof: Now know ye that we, the De^n and Chapter," 
tc,i "have, by our whole and mutual assent, consent, and agreement, deprived, 

D 



22 REGINA v. DEAN, &c., OF ROCHESTER. E. T. 1851. 

^9^^ *^^^^^t remoYed, displaced, and expelled, and, bj these presents, for oar^ 
''-I selves and our successors, do deprive,'' &o., " and expel, the said R. W. of 
and from the office and place of Upper or Head Master," £c., *' and of and from all 
and every other office, place, or ministry in the said Cathedral church, and of and 
from all houses, lands," &o. '* In witness," &c. 

The plea then averred that the supposed oflfence in respect of which 
the first-mentioned resolution and the secondly-mentioned deed poll 
were made was the same with the offence mentioned in the first-men- 
tioned deed poll and the secondly-mentioned resolution, viz. the said writ- 
ing, printing, and publishing of the said pamphlet, and is the supposed 
cause of removal alleged in the return of the Dean and Chapter, and 
not other or different ; and that there never was any other cause for 
such removal : that the removal mentioned in the return is the removal 
set forth in the secondly-mentioned deed poll, and no other, &c. : and 
that the Bishop of Rochester in the pamphlet and deeds poll mentioned 
was formerly the Dean of Worcester as and when in the said pamphlet 
mentioned, and was during all the time aforesayl, and still is, the Bishop 
of Rochester for the time then and now being. Verification. 

Demurrer to each plea, assigning causes, which it is not necessary to 
set forth here. (See p. 24, note (i), post.) Joinder. 

The demurrer was argued in this term,(a) 

Sir F, Kelly ^ for the defendants. — First, the record shows that there 
is a visitor ; an appeal lies to him ; and this court, therefore, has not 
*.7q-i jurisdiction to inquire *into the propriety of the dismissal; 
^ J Philips v. Bury, Skinn. 447,(6) Dr. Walker's Case, Ca. K. B. 
Temp. Hard. 212. By the statutes, 26, De pueris Grammatieis^ &c., 
and 35, De Corrigendis JSxcesaibus^ tM body (that is the Dean and 
Chapter) ^which elects the master has power to dismiss him : and the 
functions of the visitor, if the Dean and Chapter do wrong, are pointed 
out by the statute 38, De Vuitatione Hcclesice. The powers vested in 
them and in the visitor, respectively, are the same as in the Chester 
Case,(r) which is an authority for the defendants on this point, and 
shows also that the return cannot be objected to if it does not state 
precisely the cause of amotion. Should the Court think differently on 
this last point, the defendants are prepared to show that suflBcient 
ground of removal appears by the pamphlet as set forth : otherwise its 
contents need not be discussed. It will be contended, however, that 
the visitor is disqualified in this case, because the publication which 
caused the dismissal reflects on him as well as on the Dean and Chap- 
ter. The prosecutor thus avails himself of his own wrong. It is as if, 
in a libel, he had reflected upon all the Judges of this Court, and there- 

(a) April 26th, 1851; before Patteson, Wightman, and Erie, Js. (Lord Campbell, C. J^ 
was at the Criminal Court of Appeal.) And April 30th ; before Lord Campbell, C. J., Patteaon, 
Wighinan, and Eric, Js. 

(fr) Judgment of Lord Holt in S. C. 2 T. R. 346. 

(c) Regina r. Deao A Chapter of Chester, 15 Q. B. 513 (K C. L. R. toL 69). 



17 ADOLPHUS & ELLIS. N. S. 23 

fore contended that the Court could not take cognisance of a proceeding 
against him for the libel. [Patteson, J. — If a servant libelled me, and 
his master dismissed him for it, and the servant brought an action for 
the dismissal, could not I try the cause ?] If this objection be removed, 
it results from the authorities that the proper jurisdiction is in the 
visitor ; and that opinion was expressed in a former stage of this case(a) 
bj Wigram, V. C, who said : " If *there be a visitor whose powers p^^^ . 
are not so circumscribed as to exclude the jurisdiction, I appre- ^ 
bend it is clear, that the jurisdiction must be in that visitor, and that 
his decision upon the point is final. This is so broadly stated in all the 
cases since Philips v. Bury, Skinn. 447, that it cannot be necessary that 
I should refer to authorities in support of it. The case of The King v. 
Bishop of Chester, 1 W. Bl. 22, shows that the rule applies as well to 
Cathedral as to other bodies." 

Sir F. TkesigeTj contri. — It must be admitted that, if the Bishop is 
visitor quoad hoc, the prosecutor cannot, after the decision in Regina 
V. Dean and Chapter of Chester, 16 Q. B. 618 (E. C. L. R. vol. 69), 
raise the question of lawful cause in this Court. But, if he be not the 
visitor, then, there being an allegation in the return that the prosecu- 
tor was dismissed for lawful cause, and the pleas denying such cause, 
the question, whether or not sufficient cause appears, may, upon this 
record, be open to di8CUSsion.(i) 

The Bishop is not the visitor quoad hoc ; first, ^because, assuming, p^^. 
for the purpose of the argument, that he is the visitor generally, ^ 
his authority is suspended in this case by reason of personal interest ; 
the prosecutor having been removed for libel, not only on the Dean and 
Chapter of Rochester and other deans and chapters, but on the Bishop 
himself. It is suggested that the prosecutor cannot by his own wrong 
disqualify the visitor : but it is contrary to the most established prin- 
ciples, and to natural justice, that any person should be judge in his 
own ^use. The rule would apply to the Judges of this Court, if they 
were called upon to try a matter in which their jurisdiction was final, 

(a) Wbuton «. The Dean k Chapter of Rochester, 7 Hare, 532, 561. 

(5) The demurrer to plea 1 alleged, as to so much as related to the return of a removnl for 
lawful cause, "that the same plea traverses and denies an averment which is not travemablc, 
mad which is immaterial and stated after ' to wit' and not positively alleged or stated : that the 
plea traverses and denies the lawful cause for the said removal, which allegntion of lawful 
cause ought not to be and eannot be by law traversed or denied or put in issue in such pleadings 
as the present : that it does not appear with certainty whether the said plea denies only the 
existence of a lawful cause, or that the removal was founded on a supposed lawful cause, or 
denies both," Ac. The demurrer to plea 2 stated, as to so much as related to the return of an 
omiMion to cail in the visitor: that it does not appear with certainty how the Bishop was dis< 
qualified or interested; that the plea sets up personal misconduct as a disqualification, and ects 
it up so that no proper issue could be taken upon it; that the interest is so stated that, if issue 
were Uken upon it, matter of law must be tried by a jury ; that the plea is uncertain, and 
dooUe, ±e. The demurrer to plea 3 stated: That the plea confesses the matters in the return, 
aad endeavors to avoid them by matter uncertainly and insufficiently pleaded and immRterinl : 
that, if the plea denies the return or any part of it, it does so in an insufficient and improper 
mr, and should have condaded to the country," Ao. 



25 REGINA v. DEAN, Ac., OP ROCHESTER. E. T. 1861. 

and each of them had a personal interest.(a) If it was necessary, in 
order to justify the removal, that the libel on the Bishop should be one 
ground of accusation, that is a cause of dismissal, as much as if it had 
been the only cause. If the removal was really for the libel on the 
Dean and Chapter, and that ground was sufficient, it is their own fault 
that they did not confine the accusation to that. The principle relied 
upon is laid down in many cases. Buller, J., says in Rex v. The Bishop 
of Ely, 2 T. R. 290, 338 : «< Secondly, As this was not a visitatorial act, 
it is impossible that the propriety of the Bishop's conduct can be 
inquired into by him as a visitor, for this would be to determine upon 
*9f)1 ^^^ ^^^ right. This point is so clear, that if there *were no 

^ authority on the subject, I should not have hesitated to make the 
first determination upon it. A visitor cannot be a judge in his own 
cause, unless that power be expressly given him. A founder indeed 
may make hitn so, but such an authority i^ not to be implied ; he cannot 
visit himself. In the present instance the Bishop of Ely claimed an 
interest, and asserted a right, in the appointment of the master ; and 
that appointment is the act complained of. The case of The King v. 
The Bishop of Chester, 2 Stra. 797, S. C. 1 Barn. K. B. 62, is a strong 
authority on this point : it does not indeed go the whole length of this 
case ; but the principle of it is, that the same person cannot be the 
visitor and the visited." The incapacity of the Bishop of Chester to 
visit, established by the last cited case, caused the passing of stat. 2 
G. 2, c. 29. It is laid down in Brookes v. The Earl of Rivers, Hardr* 
603, that, (( where a Judge has an interest, neither he nor his deputy 
can determine a cause :" and the same doctrine appears in Wood t^. 
The Mayor and Commonalty of London, 1 Salk. 397, S. C. Holt, 396 : 
therefore the Bishop here could not visit by his Chancellor. It has 
been said that even an act of parliament to make a man judge in his 
own case would be void as against natural equity; Day v. Savadge, Hob. 
86, 87. Among the more modern cases on this point are Regina v. The 
Cheltenham Commissioners, 1 Q.^B. 467 (£. G. L. R. vol. 41), Regina 
V. The Justices of Hertfordshire, 6 Q. B. 753 (E. C. L. R. vol. 51), The 
Grand Junction Canal Company v. Dimes, 12 Beav. 63, 2 Macn. & G. 
285, Dimes's Case, 14 Q. B. 554 (E. C. L. R. vol. 68),(a) and Regina 
V. Aberdare Canal Company, 14 Q. B. 854 (E. C. L. R. vol. 68). The 
^^-1 general rule on this point applies k fortiori in the ^case of a visitor, 

•^ whose power is discretionary and under no control. 
{T^ie Court adjourned the argument at this point, and, on the subse* 
quent hearing, directed Sir F. Thesiger to confine himself to the ques* 
tion as to the visitor's authority.) 

(a) See Yenrb. Hil. 8 H. 6, fol. 18 B., 19 B. pi. t, eited in Dimes ▼. Proprietors of The Gruid 
Junction Canal, 3 H. Lonis Co. 759, 787. 

{b) And, a« to other stages of the same cave, see the notes 14 to Q. B. pp. 555, 567 ; and Dimes 
V. Proprietors of the Orand Junction Cauali 3 H. Lords Ca. 759. 



17 ADOLPHUS & ELLIS. N. 8. 27 

Secondly ; by the statutes of this foundation the Bishop is not visitor 
as to the Grammar School. A visitor may be so for one purpose and 
not for another, if the statutes restrain him ; per Ashhurst, J., in Rex 
V. The Bishop of Ely, 2 T. R. 835. «« There is no technical form of 
words for granting a visitatorial power, but it may be by any words 
showing that meaning ;*' <« and visitatorial power may be divided, one 
set of visitors to one purpose, and another to another purpose ;" per 
Lord Hardwicke in Attorney-General v. Middleton, 2 Yes. 327, 828. 
The visitatorial power here is given, and obedience to it prescribed, in 
large and general words, by statute 38, De Visitatione JEcclesice. But 
statute 85, De Corrigendia JExceMibua^ contains this ordinance : <' Ut 
in Ecclesi^ nostr& morum integritas servetur, statimus et volumus ut si 
quis minorum canonicorum, clericorum, aut aliorum ministrorum, in levi 
culp adeliquerit, a^bitrio Decani, aut, eo absente. Vice Decani, corn* 
gatur. Sin gravius fuerit delictum, (si justum judicabitur) ab iisdem 
expellatur a quibus fuit admissus :" that is, in the case of the Master, 
the Dean and Chapter, by statute 26, De pueru grammaticis : whereas, 
if one of the canons should commit an offence or crime subjecting the 
Church to heavy scandal, he is to be admonished by the Dean, and, if 
he do not amend, accused before the visitor, and by his judgment cor- 
rected. 

*A further question will be, if the power of expelling for << gra- 



vius delictum" be in the Dean and Chapter, and they have expelled 



[*28 



for something which clearly is not gravius delictum, whether there be 
not such an excess of jurisdiction that the Court-will award a manda- 
mus, irrespectively of any visitatorial authority. Was it then «< gravius 
delictum," within statute 35, to publish a pamphlet merely imputing a 
breach of the founder's regulations in the application of the funds ? 
[Patteson, J. — That was a question of fact, which they had jurisdic- 
tion to determine.] They have here expelled a second time for the 
same offence. [Lord Campbell, C. J. — Were the acts done in a visita- 
torial character ?] They have assumed so to do them ; nor could they 
do them in any other capacity ; but they have proceeded ultra vires. 
[Lord Campbell, C* J. — The visitor has an original jurisdiction in 
some instances ; most frequently it is vested elsewhere. It does not 
follow from its being so vested that the visitor has not the appellate 
jurisdiction.] The existence of an appellate jurisdiction is not to be 
assumed, merely because there is a visitor. 
Sir F. Kelly was not called upon to reply. 

Lord Campbell, G. J. — Not having heard the whole argument, I 
should wish the other members of the Court to give judgment in the 
case. 

Patteson, J. — The great question is. Who, in this case, is the visitor ? 
On the argument the other day I thought it was almost conceded that 
the general authority of the visitor extended to this case, unless the 
VOL. XVII. — 6 D 2 



28 REGINA v. DEAN, &c., OP ROCHESTER. E. T. 1851. 

^^^. interest alleged in the seoond plea excluded him. But a further 
^ ^question has been raised, on the 35th and 38th statutes, whether 
the Bishop is visitor at all in a matter merely concerning the school. 
Now statute 35 does not in any way relate to the appointment of a 
visitor. It provides that if any one <« minorum canonicorum, clerico- 
rum, aut aliorum ministrorum," should offend <Mn levi culpfi," he shall 
be corrected, "corrigatur" <«arbitrio Decani, aut, eo absente, Vice 
Decani." But, in case of a weightier delinquency, <<sin gravius fuerit 
delictum," he shall be expelled by the same persons who gave him 
admission ; that is, in the Master's case, the Dean and Chapter. Then 
follows another provision, that, if a canon be admonished of an offence 
for the third time and do not aipend, » apud Episcopum visitatorem 
suum accusetur, et illius judicio corrigatur.'* Here, then, in the cases 
first mentioned, of correction and expulsion, the Dean and Chapter, 
and no others, are the persons to act ; in the last, the Bishop is the 
judge in the first instance, and not by way of iippeal ; for here the 
Dean and Chapter cannot act. But then statute 88 gives a general 
power to the Bishop, to visit, and to correct all things, whether done 
by the Dean and Chapter or by any other ; and the words extend, not 
only to reforming and correcting in the first instance, but to hearing 
an appeal. In Begina v. Dean and Chapter of Chester, 15 Q. B. 513 
(E. C. L. R. vol. 69), where a chorister had been removed by the 
defendants, this Court, on mandamus, held that the Bishop, as visitor, 
was the proper person to inquire into the removal, though in that, as 
in the present case, the Dean and Chapter had power by the statutes 
to expel, as being the persons who admitted, and it might have been 
*^m ®**^ *'^*^' ^^^ ^^^^ purpose, they acted as visitors. I think *that 
^ case and the present are quite alike, and the statutes now before 
us not distinguishable from those of Chester. The Bishop, therefore, 
has the authority, as visitor, to decide whether or not the Dean and 
Chapter have done right. 

A question is then raised, whether this proceeding be not such an 
excess of jurisdiction in the Dean and Chapter as calls for an inter- 
ference by mandamus though there be a visitor. I think not. If there 
be a visitatorial power, there cannot be such an excess of jurisdiction 
in the body to be visited as ousts him of jurisdiction ; and it has been 
so laid down in many cases. 

If then the Bishop be, as I think he is, the visitor as regards the 
school, the question remains, under the second plea, whether or not ho 
IS excluded 6y reason of interest. By that plea the cause of removal 
appears to be a pamphlet in which reflections are made upon the Dean 
and Chapter, and also upon the Bishop, both as visitor of this founda- 
tion and as Dean of Worcester: and therefore it is contended that he 
has an interest which prevents his acting as visitor. That a man can- 
not be judge in his own cause, is a rule laid down in Wood v. The 



17 ADOLPHUS & ELLIS. N. S.^. SO 

Major and Commonalty of London, 1 Salk. 897, Rex v. The Bishop 
of Ely, 2 T. R. 290, Rex v. The Bishop of Chester, 2 Stra. 797, and 
in other cases, which have been lately decided. The only question is, 
whether that principle be applicable here; whether the plea shows 
such an interest as would make the Bishop, if he acted, a judge in his 
own cause. The Bishop, here, has no interest in the appointment. 
In Rex V. The Bishop of Ely the case was otherwise ; but there, too, 
the act which the Bishop had assumed to *do as visitor was not p^o^ 
properly visitatorial. Here no direct interest is shown in either *- 
the removal or the restoration ; but it is argued that, because the stric- 
tures in the pamphlet extend to him, he has not only a bias but an 
interest. Assuming that the plea shows the reflections on him. to have 
been a ground of removal, the removal was not his act, but that of the 
Dean and Chapter : he has no interest in the funds said to have been 
misapplied: nor would the application of them be any part of the 
question before him as visitor. Nor would it be any question before 
him whether or not Mr. Whiston was properly punished for reflecting 
on him : and, if it were, his adjudication on the subject as visitor is no 
remedy to him, and does not deprive him of his remedy by action. If 
the Dean and Chapter have expelled the Master for a libel on the 
Bishop, they cannot thereby oust him of his right to proceed at law; 
In Brookes v. The Earl of Rivers, Hardr. 508, where a prohibition was 
refused because the alleged interest of the Judge was not made out, it 
was further objected that one of the parties was his relation by mdr- 
riage ; but the Court said that *^ Favour shall not be presumed in a 
judge." So, here, favour ought not to be presumed because the Bishop 
is libelled in this pamphlet. The second plea, therefore, is no answer, 
since it fails to show an interest in' the visitor ; and the visitatorial 
power itself is not brought in question by it, the only question on the 
plea being, whether or not the power is suspended. 

WiGHTMAN, J. — As to the Dean and Chapter being '^visitors 
quoad hoc, the argument entirely fails. Nothing here is done by 
them as visitors ; nor are they authorized to do anything in that cha* 
racter by statute 35.. Under that statute they may expel for certain 
offences ; but in doing so they do not act as visitors : if they are wrong 
in their exercise of jurisdiction, the only question is to whom an appeal 
lies. The power, generally, in such cases, is with the visitor ; and, where 
it is so, this Court has no jurisdiction. Now nothing can be more large 
than the terms in which authority is given to the Bishop : <« Cui quidem" 
««plenam concedimus potestatem et auctoritatem ut super Singulis arti- 
culis in statutis nostris contentis, et quibuscunque aliis articulis statum, 
commoduiQ, aut honorem Ecclesise nostro concernentibus, Decanum, 
canonicos, minores canonicos, cseterosque ministros et cogat et eorum 
quemlibet per juramentum Ecclesisa prsestitum veritatem dicere de omni- 
bus delictis et criminibus quibuscunque. Comperta autem et probata. 



[*32 



82 REGINA t;. DEAN, Ac., OF ROCHESTER. E. T. 1851. 

jnxta delicti et criminis tnensnram, puniat Episcoptis, atqtte reformet, 
omniaque faciat quae ad vitioram resecationem necessaria yidebuntar, 
quseqae ad visitatoris officium de jure pertinere dinoscuntur. Qaos qui- 
dem omnes, tarn Decanum quam Canonicos, et alios Ecclesise nostrsd 
ministros, quoad omnia premissa volumuB et mandamus ipsi Episcopo 
parere et obedire/* If the Dean and Chapter commit a mistake in the 
exercise of their functions, the person who has the general supervision 
is the Bishop. The Dean and Chapter did not act as visitors in remov- 
ing the master. That act is an ordinary incident in the administration 
of such bodies, and is not visitatorial. The case is undistinguishable 
^no-i from Regina v. Dean and Chapter of *Chester, 16 Q. B. 613 (E. 
-' C. L. R. vol. 69) ; the objection now made might, if valid, have 
prevailed there. As to the other points, my brother Fatteson has 
expressed my opinion. 

Erle, J.-*- As to the first question : it is clear that, under statute 36, 
the Dean and Chapter have an original jurisdiction to remove an ofiBcer 
of this kind for a grave offence. It is also clear that, under statute 38, 
the visitor has power to say whether such removal has been wrong. He 
is to do all that pertains to the office of visitor : he may himself expel 
if the Dean and Chapter ought to have expelled but have not : and it 
follows that he is the person to adjudicate as visitor when the Master 
has been removed and alleges that the removal is wrongful. Secondly, 
is the removal complained of such a clear excess of the jurisdiction that 
the Dean and Chapter have no right to contend that it is within the 
visitor's cognisance ? The ground of dismissal is aa alleged libel. A 
publication may be so libellous as to be a grave offence. Whether it is 
so or not, is for the determination of the Dean apd Chapter. If they 
have jurisdiction at all, they have authority to decide this. The com- 
plainant alleges that it was their duty to decide in his favour : if so, it 
was their duty to entertain the question : how they should decide, it 
was for them to consider. I agree with my brother Fatteson that the 
visitor here has n« personal interest which disqualifies him. 

Lord Campbell, C. J. — Having been absent during part of the argu- 
^Q.^ ment, I did not wish to give my opinion '^till my learned brothers 
-* had decided the case : but I think I may now say that I entirely 
concur with them. It was argued that, by virtue of statute 86, the 
Dean and Chapter were visitors in this case ; but I think not. All they 
do under that statute is matter of appeal under statute 38. They have 
an original jurisdiction as to amotion, but subject to appeal. In this 
case, therefm, the proper appeal was to the visitor, unless he was dis- 
qualfied by interest. The rule is, no doubt, that a man shall not be 
judge in his own cause. But here the Bishop is no party, and has no 
interest in the result. Those who contend for the disqualification might 
as well say that, if the master had been removed for a libel on the 
Judges of the Queen's Bench, we should for that reason have had no 
jurisdiction. Judgment for the Crown. 



17 ADOLPHUS & ELLIS. N. S. 34 



The QUEEN v. POCOCK and Others. May 7. 

TraslMS appointed, under • local aet, for the parpoie of repairing th0 roads in a distriot, with 
power to contract for executing each repair^ are not cliargeable with manslaaghter if a person, 
using one of such roads, is accidentally killed in consequence of the road being out of repair 
through neglect of the tmstaei to contract for repairing it 

Watson, in this term, obtained a rule to show cause why an inquisi- 
tion, held on 6th January, 1861, before the Coroner for the City of 
London and borough of Southwark, on the body of William Brent, 
and brought into this Court by certiorari, should not be quashed for 
insufficiency. 

The inquisition set out that the defendants and others of the said 
borough, on 27th December, 1850, in the parish of St. George the 
Martyr, in the said borough, ♦'<upon the said William Brent" p^^. 
<( feloniously did make an assault ; and that the said*' defendants *- 
and the said others ^^were then and there trustees under a certain 
Act," &c. (10 G. 4, c. cxxviii.(a)): "that it thereupon became the 
duty of" defendants and the said other's " to contract and agree for 
the reparation, repairing, and amending of a certain road hereinafter 
mentioned, and also to repair and amend and to cause to be repaired 
and amended the said road, to wit, a certain road commencing," &c., 
along, &c., to, &c., the said road being within a certain district called 
in the said Act the south district of the ^parish of St. George the p^<^ 
Martyr in the borough of Southwark, " when and so often as the ^ 
same shall be necessary, with good, proper, and sufficient materials and 
things, and with such due reparation and amendment that the liege 
subjects of our Lady the Queen might go, return, pass, repass, ride, 
and labour with their horses, coaches, carts, and other carriages in, 
through, and along the said road (the same then and there being a 
public road) as they ought and were wont and accustomed to do:" 
that defendants and the said others, being unmindful of their duty, 

(a) Local and perwmal, pablle : " For watching, lighting, elaaniiog, and improTing the roadi, 
streets, and other public pasaages and places leading from the Stones End, Blackman Street, to 
the Fishmongers' Almshoasee, Newington, and from thence, and from Stones End aforesaid, 
towards Blackfriars, Waterloo, atfd Westminster Bri^gea, and the parts adjacent or near thereto, 
within the parish of Saint Oeorge the Martyr in Southwark in the oountj of Surrey." 

Bj sect 1 the defendants and others are appointed trustees fbr (among other things) repairing 
the roads mentioned in the Act, and preronting nuisances therein. 

Sect lO^naets " that it shall be lawful for the said trnateea to oanae the aatd se?eral roadi, 
■treets, and other publio passages and places within the said district (or such part or parte thereof 
only as to them the said trustees shall seem right) to be lighted and watched, and the part and 
parts of the now turnpike roads within the distriot, when the same shall come under their 
management and control and shall oease to be turnpike roads, in such manner as they the said 
tmatees shall think fit, and to exercise all such powers and authorities as shall be necessary for 
thai purpose ;" and ** io eontraet and agne for the reparation, repairing, and amending, by paring 
or otherwise, of all parts of the aaid distriot which are now not deemed turnpike roads, and of the 
■aid part or parts of the said turnpike roads, whenerer the same shall be under their manage- 
ment and control, and hare by law to be rep^red and amended by the trustees under this Act :" 
•ad by sneh eontraeta to stipulate for fines to be Imposed on the eontneton for neglect or 
delaulL Power is also given to the trustees, by sect 49 and other sections, to lery and enforce 
fajmtni of rates for repairing and maintaining the said roads, streets, Ao. 



86 REGINA v. POCOCK. E. T. 1851. 

« did then and there, contrary to their said duty, feloniously neglect 
and omit to contract and agree for the reparation, repairing, and 
amending the said road, and did also then and there feloniously neglect 
and omit to repair and amend and to cause to be repaired and amended 
the said road, to wit, at,*' &c. ; <« whereby the said road then and there 
became and then and there was in a very ruinous," &c., « and decayed 
condition for want of such due reparation and amendment of the same : 
and that, the said William Brent being then and there riding upon a 
certain barrow drawn by a certain pony which he the said W. B. was 
then and there driving along the said road, the said" defendants and 
the said others, «« by the feloniously neglecting and omitting to con- 
tract and agree for the reparation, repairing, and amending the said 
road, and the feloniously neglecting and omitting to repair and amend 
and to cause to be repaired and amended the said road, and by reason 
of the want of such due reparation and amendment of the said road as 
aforesaid, did thereby then and there feloniously cause one of the 
wheels of the said barrow then and there to drop into a certain large 
^07-1 hole in the said road, and the said William *Brent to be thereby 

^ then and there jerked and thrown with great violence from and 
off the said barrow down to and upon and against the ground there ; 
and by means thereof the said" defendants, &c., did <« then and there 
feloniously cause the said W. B. then and there to receive mortal frac- 
tures of eight of the ribs of him the said W. B. ; of which said mortal 
fractures, and the sickness," &c., <^ thereby occasioned, the said W. B. 
did languish," &c., "and, on," Ac, "the said W. B. of the said mortal 
fractures," ic, " did die : And so the jurors," &c., " do say that the 
said" defendants, &c., " him the said William Brent, in manner afore- 
said," &c., " felonioilsly did kill and slay, against the peace," &c. 

Ohamock now showed cause. — The defendants have been guilty of a 
felony in omitting to fulfil their statutory liability to contract and agree 
for the repairs of the road, inasmuch as the absence of such repairs has 
caused the death of a party using the road. [Lord Campbell, G. J.— 
Surely this is different from a case of personal neglect ; how can such 
an omission as this, on the part of trustees, amount to a felony ?] They 
have funds in their hands, for the purpose of repairing, which they 
omit to use ; that is a neglect of their duty towards the public in respect 
of those funds ; and such neglect is clearly a felonious offence, if ic 
cause the death of any one ; Regina v. Haines, 2 Gar. k Eir. 368, 871 
(E. G. L. R. vol. 61). The objection raised in Regina v, Barrett, 2 
Car. & Eir. 343, cannot be made in the present case ; for there is a 
distinct allegation here that it was the duty of defendants to repair. 
The defendants will contend that the parish officers are liable for the 
^oj., neglect. [Lord Campbell, C. J. — Where the *inhabitants gene- 

^ rally of a parish are bound to repair, can they be indicted for 
felony upon a death caused by their not repairing ?] It is not necessary 



17 ADOLPHUS & ELLIS. N. S. 



to go so far ; here an express duty is imposed by statute upon a parti- 
cular body. [Lord Campbell, C. J. — But that duty is the same which 
lay originally upon the inhabitants.] The question is not whether there 
are sufficient grounds for a conviction in case of an indictment being 
preferred, or what would be the punishment in case of a conviction : but 
whether the inquisition is, on the face of it, bad. [Lord Campbell, C. 
J. — To ascertain that, we must see whether, and how, the duty alleged 
in the inquisition arose. Erle, J. — In order to make the neglect of 
duty an indictable offence, must it not, as in the cases cited of neglect 
.in the management of mines, be immediately connected with the death ? 
WiGHTMAN, J. — In the cases referred to, of neglect in managing mines, 
the person killed was not aware of such neglect. Why did the deceased 
here go along the road at all 7] There is nothing to show that he knew 
of its being out of repair. 

Walton and O-. ffaye$^ contrd., were not heard. 

Lord Campbell, C. J. — I am clearly of opinion that the inquisition 
is bad, and must be quashed. No doubt the neglect of a personal duty, 
when death ensues as the consequence of such neglect, renders the party 
guilty of it liable to an indictment for manslaughter : and the cases 
which have been cited in the course of the argument, and which establish 
that doctrine, are good law. I myself tried a prisoner for not taking 
proper care in managing the shaft of a mine. He intrusted the manage* 
ment of it to an incompetent ^person, who said at the time that p^^q 
he was incompetent. The prisoner was convicted ; and I did not ^ 
hesitate to inflict a severe sentence. Sut how can the principle I have 
stated apply to the present case ? It cannot be said that the trustees 
are guilty of felony in neglecting to contract. Not only must the 
neglect, to make the party guilty of it liable to the charge of felony, be 
personal, but the death must be the immediate r^esult of that personal 
neglect. According to the argument here, it might be said that where 
the inhabitants generally are bound to repair, and a death is caused as 
in the present case, all the inhabitants are indictable for manslaughter. 

Patteson, J. — The inquisition is clearly bad. The allegation that 
the trustees feloniously neglected to repair cunnot be supported. 

WiGHTMAN, J. — I am of the same opinion. The death here is not 
the direct consequence of the neglect charged. 

Erle, J. — In all the cases in which a party has been indicted for 
manslaughter in causing death' by his omission to perform a particular 
duty, I think the neglect of duty was immediately connected with the 
death, as in the case of careless driving on a railway, or of not supply- 
ing an infant with food. The present case does not fall within this 
class. The inqifisition is bad, and must be quashed. 

Inquisition quashed. 

In an indictment for manslaughter which provides that any act of miscon- 
nnder the act of Congress July 7, 1838, duct; negligence, or inattention on the 



REGINA V. POCOCK. E. T. 1851. 



part of persons employed in steamboat was lost without fault on the part of the 

navigation, producing death as a result, defendants, they should be discharged : 

shall be deemed manslaughter, it is and if it appear that those who lost 

unnecessary to aver or prove malicious their lives did so by neglecting the 

intent in the persons charged. If, on directions of the officers in charge, after 

the trial of such an indictment, it ap- the accident had happened, the defend- 

pear that the steamboat of which the ants should be discharged : United 

defendants had charge, came into colli- States v, Warner, 4 M'Lean, 463. 
sion with another vessel, whereby life 



^.^, *The QUEEN v. The Inhabitants of LLANELLY, BRECK. 



*40] 



NOCKSHIRE. May 7. 



A married pauper and her ebildren were removed by ao order of jastiees from the parish where 
■he had resided, as a married woman, for ten years continuonsly. Two years before the order 
of removal, her husband had left her and gone to America. She had received letters from him 
since his departure, and was daily expecting, at the time of the hearing of the appeal, to 
receive a letter from him containing money to enable her and her children to join him. The 
Sessions having quashed the order, and stated the above facta in a case for this Court: 

Held : that there was a disruption of the husband's residence, and that such disruption rendered 
the wife and children removable, notwithstanding their unbroken personal residence in the 
respondent parish. 

On an appeal against an order of justices, dated 12th July, 1850, 
for the removal of Margaret George and her three children from the 
parish of Llanelly, in Brecknockshire, to the parish of Llanelly, in 
Carmarthenshire, the Sessions quashed the order, subject to the opinion 
of this Court upon a case, which was in effect as follows. 

The pauper had been married ten years last May, and had resided 
within the respondent parish ever since. She had three children born 
since her marriage. About two years ago her husband left her in a 
cottage in the respondent parish, and went to America, where he then 
was. She had received letters from him, one only a week before the 
Sessions, and was in daily expectation of receiving another letter from 
him, with money for the purpose of defraying the expenses of herself 
and her children over to her husband in America. 

Thp respondents cited Regina v. Pott Shrigley, 12 Q. B. 143 (E. C. 
L. R. vol. 64) ; and the appellants referred to Regina v. East Stone- 
house, 12 Q. B. 72 (E. C. L. R. vol. 64).(a) The Justices were of opinion 
there was no disruption of the five years' residence, and that the five 
♦411 y®***^ ^^y^ ^'^'^ running on in the respondent *parish : and there- 
^ fore the order was quashed without discussing the other grounds 
of appeal. 

Should this Court aflSrm the order of Sessions on the irremovability 
by reason of residence, the order of removal was to be quashed on that 

(a) Where, however, no dooiiion took plaoe on tiie point now raised. 



17 ADOLPHUS & ELLIS. N. S. 41 

ground : should the Court be of opinion that the order of Sessiona was 
wrong, then the order of removal to be confirmed. 

Pashleif, in support of the order of Sessions. — The order of removal 
was properly quashed, inasmuch as the pauper and her children had 
been irremovable under stat. 9 & 10 Vict. c. 66, s. 1, by reason of an 
unbroken residence of five years in the appellant parish up to the re- 
moval. It was contended by the respondent parish that, although there 
had, primfi facie, been a residence by the wife of more than five years, 
there was such a disruption of the husband's residence as to make the 
wife removable. Regina v. Pott Shrigley will be relied on by the other 
side. But there the disruption of the husband's residence, which was 
caused by his being transported, took place before lie had resided five 
years in the parish. In the present case the husband had resided more 
than five years before the alleged disruption. He had not since then 
changed his domicile ; so that, if he had returned before the order of 
removal was made, he would have been legally irremovable ; and it is 
upon the legal irremovability of the husband, and not upon the mere 
fact of his absence from or presence in the parish, that the irremova- 
bility of the wife depends; Regina v. St. Ebbes, 12 Q. B. 187'(E. G. 
L. R. vol. 64). It is true that here the wife, at the time of the hear- 
ing of the appeal, was in expectation of a letter *from her hus- 



band containing the means for her departure from the parish; 



[♦42 



but that only shows, at most, that the husband had an intention of 
changing his domicile at some future time. Nor is there any evidence 
that there was such expectation on the part of the wife, or, conse- 
quently, such intention on the part of the husband, at the time of the 
making of the order, which is the date that must be looked to as mate- 
rial. It cannot, therefore, be said that the husband has changed his 
residence while the wife and children remain in the parish under these 
circumstances. [Lord Campbell, C. J. — Must we not consider that 
the husband's domicile is transferred, whatever may be the legal effect 
of such transference ? Suppose that he were actually established in a 
mercantile concern in America ; is his domicile still in England, until 
his wife and children join him ?] That is a question of fact as to which 
a jury might draw an inference either way. [Lord Campbell, C. J. — 
There might be a question as to the operation of the change of domicile 
under stat. 9 & 10 Vict. c. 66 ; but there could be no doubt of such 
change having taken place ; the husband's personal property, if he died 
in America, would be administered according to the law of that country.] 
Somerville v. Lord Somerville, 5 Yes. 750, is an authority against the 
personal property, under circumstances like the present, being adminis- 
tered according to the lex loci rei sitss. The lex domicilii is to be 
looked to ; and, according to Pothier, Coutumea d'Orleans, Introduc- 
tion, c. 1, s. 20, p. 7 (CBuvres, vol. 5, ed. 1780, 4to.), the wife's resi- 
dence is a material point in ascertaining the disputed, domicile of tho 
VOL. XVII.— 7 E 



42 REGINA t;. LLANELLY. K T. 1851. 

^ 

^ .o-| httsband. Moreover, the Sessions having decided, *upon the evi- 
^ dence laid before them, that there was no disruption, this Court 
will not review their decision. It might be a question here, whether 
there was any evidence at all for such a decision, but not whether the 
decision upon the evidence was correct. Even the question whether, in 
the case of a pauper's departure from the parish in which he has been 
residing, there is an animus revertendi or not, is properly a question of 
fact for the Qnarter Sessions ; Regina v. Tacolnestone, 12 Q. B. 157 
(E. C. L. R. vol. 64). Here it does not appear with what object the 
husband went to America ; and the Sessions have not raised any ques- 
tion of law by their decision. 

Further: even if the husband had changed his domicile, and had 
abandoned his wife, she would not have lost her irremovability, as she 
acquired it before the husband's change of domicile. In Regina v. Pott 
Shrigley, 12 Q. B. 148 (E. C. L. R. tol. 64), the husband had never ac- 
quired irremovability at all, so as to render the wife irremovable. 
[Lord Oampbbll, G. J. — Can the wife acquire irremovability proprio 
jure ?] The language of stat. 9 & 10 Vict. c. 66, s. 1, is certainly in- 
tended to give the wife that power : «< such person*' applies equally to 
the husband and the wife, [^rlb, J. — The proviso at the end of the 
section makes the removability of the wife and children dependent 
upon that of the husband ; and stat. 11 k 12 Vict. c. Ill, s. 1, so inter- 
prets it.] The exact meaning of the proviso is not very clear ; and the 
interpretation given to it by stat. 11 k 12 Vict. c. Ill, s. 1, has not 
made it less perplexing. The latter statute seems intended to provide 
that the absence of the '^husband, which creates a physical irre- 
movability from the parish, does not creale such an irremova- 
bility as to render the wife irremovable. The question had been 
raised in Regina v. St. Ebbes, 12 Q. B. 187 (E. C. L. R. vol. 64). 
{Pattbson, J. — Suppose the man in the present case had been unmar- 
ried, and had gone for a time to America. If he had returned before 
the day of the making the order, he would be removable : you could not 
incorporate the time during which he resided in the parish, before 
going to America, with the time during which he resided in the parish 
after his return. Can you contend that in such a case he would be 
irremovable ?] He would certainly be irremovable in the absence of 
any explanation of the cause of his absence. [Lord Campbell, C. J. — 
What question of law do you say that the Sessions have reserved ?] 
None ; unless it be the question. Whether there was any evidence at all 
for the fact which they decided. [Pattbson, J. — They seem to find 
that there was no disruption, b^eaute the wife still remained in the 
parish.] The fair inference of fact, upon the evidence, is, that the 
husband was in doubt as to his return. But, at all events, the question 
is one of fact only, and cannot be again raised here. In Regina v. St. 



*44] 



17 ABOLPHUS & ELLIS. N. 8. 44 

Uarylebone, 16 Q. B. 299 (E. G. L. R. vol. 71), this Court refused to 
draw an inference as to intention. 

WiUe9j oontri^ was stopped by the Court. 

Lord GahpbsIiL, C. J. — The argument has failed to satisfy me that 
I was wrong in the opinion which I entertained at first, that, where the 
husband is absent, *so as to cause a primfi facie disruption of the -^ . . 
residence, the onus is upon those who dispute that fact to show an '- 
animus revertendi. Here no evidence has been given of such inten- 
tion ; and what little evidence there is weighs the other way. It ap- 
pears that the husband has established himself in America, and that his 
wife expects a letter from him containing the means for her removal to 
his new abode. It seems clear, therefore, that he is not resident in the 
respondent parbh ; and, if he is not resident himself, it is impossible 
to contend that the wife has, by her own residence, acquired the right 
of irremovability. 

* Patteson, J. — The wife and children pre removable unless the hus- 
band, at the time of the making of the order, is irremovable. It does not 
at aU follow, as a matter of course, that the mere absence of the husband 
creates a disruption. In Regina v. Tacolnestone, 12 Q. B. 157 (E. C. 
L R. vol. 64), there was abundant evidence to show an animus rever- 
tendi in the husband. But here it is for those who seek to prove the 
husband's irremovability to show that he had an intention of returning 
from America ; and the evidence, as far as it goes, is against such an 
inference. The order of Sessions must therefore j>e quashed. 

WiGHTMAN, J.— Regina v. Pott Shrigley, 12 Q. B. 143 (E. C. L. R. 
vol. 64), ia a direct authority to show that the wife's residence does not 
render her irremovable if the husband be removable. The question, 
therefore, here is, whether there was any disruption of the husband's 
residence? It has been '^contended that he must, primfi facie, p_^ 
be presumed to reside in the parish where he himself formerly *- 
resided, and where his wife and children still reside. But, here, there 
are additional circunlstances which throw the onus probandi, with 
regard to the husband's residence, on the other side; for it would 
appear from his letters that he had no intention of returning. 

Eblb, J. — The^ evidence is clearly in favour of the conclusion that 
there was a disruption of the husband's residence. If the unbroken 
residence of the wife is to do away with the disruption of the residence 
of the husband, the wife. might be irremovable even though the hus- 
band had been abroad for ten years, and had never been within the 
parisL That is clearly not the meaning of the Act. The order of 
Sessions is bad, and must be quashed. 

Order of Sessions quashed. 



46 REOINA t;. MANCHESTER. E. T. 1851. 

• 



The following case was decided in Michaelmas term, 1851. 

The QUEEN v. The Inhabitants of MANCHESTER. Nov. 13. 

Panper Lad lived five yean in a parish, not that of her settlement, when she became chargeable 
and an order was made for her removal. At the commencement of the flre years her hasband 
resided with her in the parish ; but he left her, daring the five years, and went to live in 
America without animus revertendL Daring the five years and before the order of removal, 
he died:— 

Held, that the pauper was not irremovable under stat 9 A 10 Vict a 66, s. 1, or 11 A 12 Viel 
e. Ill, s. 1. 

On appeal against an order of justices, dated 30th of May, 1850, for removing 
Catherine Speakman, widow of Joseph Speakman, and her five children, from the 
township of Barton upon Irwell to the township of Manchester, both in the coun^ 
of Lancaster, the Sessions confirmed the order, subject to the opinion of this Coart 
upon the following case. 

In April, 1838, the pauper Catherine was married at Manchester to Joseph Speak- 
^471 '"^°' ^^^ x^e^er acquired any settlement in his own right, *but who had a 
•^ derivative settlement in the appellant township. At the time of the marriage 
the , husband was residing in the respondent township, the wife in the appelliuit 
township. About four months after the marriage, the wife went to reside with her 
husband in the respondent township ; and they resided together, occupying a house 
in that township, without interruption, and without receiving relief, until the 
beginning of April, 1848, when the husband gave up his house and sold the greater 
portion of his furniture ; and on the 14th of the same month he lefl; England for 
America, having arranged with his wife that, as soon as he got settled there, he would 
send for her and the children. He never returned from America, but died there in 
July, 1848. After the house had been given up, and before the husband left for 
America, the whole family removed into lodgings which^he husband furnished with 
that portion of his furniture which had not been sold, in which lodgings he, with his 
wife and children, slept for several nights before, and on the night of, the 13th of 
April, 1848. When he left England, four of the five children, mentioned in the order 
were born ; the fifth was born soon after. Immediately after the husband lefl for 
America, the wife applied for and obtained relief from the respondent township for 
herself and her children ; which relief continued to be given down to the time of the 
making of the order appealed against. The wife and children continued to reside 
in the respondent township up tq the date of the order of removal. The Sessions 
found that there existed no animus revertendi on the part of the husband Joseph 
Speakman at the time he left the respondent township for America, and confirmed 
the order. The question upon the above facts was, whether the pauper Catherine and 
her children were, at the date of the said order, removable from the respondent 
township or not. If this Court should determine that they were, the order of 
Sessions was to be affirmed ; if that they were not, the order of Sessions to be reversed 
and the order appealed against to be (quashed. 

R, HaU, in support of the order of Sessions. — ^This case is in all material points 
the same as Regina v, Llanelly (supra, p. 40), but is stronger, as the Sessions have 
found that the husband had no animus revertendi. The fact of his defith cannot 
better the position of the appellants. The Court then called upon 

PashUy, contrlL. — By stat 11 Jb 12 Vict. c. Ill, s. 1, the wife is not removable 
under stat. 9 Jb 10 Vict. c. 66, from any place from which the husband is irremovable 
nnder that Act. Assuming, therefore, that the pauper Catherine would have been 
removable, and the residence broken, if the husband had been alive, that is no longer 
the case now that he is dead and that the term ** removable'' cannot apply to him. 
i^Acn *A minor, ceasing to be one of his father's family, is emancipated from that 
-I time if the separation continues till he attains the age of twenty-one ; but» if 



17 ADOLPHUS & ELLIS. N. S. 48 

1 

he retaniB home before coming of age, his former statas reYives, and there is no 
emancipation ; Rex o. Rotherfield Greys, 1 B. Jb C. 345. That state of things is 
analogous to be present 

Lord Campbell, G. J. — The husband being absent without animus revertendi, the 
wife was removable the moment she became chargeable ; as the husband himself 
would hare been if he had been alive and forthcoming. This being the situation of 
the wife, his death could not restore her former status. 

Pattison, CoLiRinoB, and Wightxan, Js., concurred. 

Order of Sessions confirmed. 



The QUEEN v. The Inhabitants of SHAVINGTON CUM GRESTY. 

May 5. 

Reli«f giren to or on Meount of the cbildren, ander lixteen. of any widow ia, bj atat 4 A 5 W. 4, 
c 76, i^ 56, to be considered aa giren to anoh widow. But it ia nevertheleaa relief giren to the 
ehildren alao ; and the time during which they ao reoeive relief must be ezolnded from a com- 
pnution of the fire yeara of reaidenee neceaaary to make them irremorahle under atat 9 A 10 
Vict e. 66. 

On appeal against an order of jastices, dated 26th March, 1850, for 
the removal of two pauper children from the township of Manchester 
to.thejownahip of Shavington cam Oresty in the county of Chester, 
the Sessions confirmed the order, subject to the opinion of this Court 
upon a case, which was in substance as follows. 

The case stated that the paupers resided in fact in the township of 
Manchester for eight years next before the application for the order 
appealed against. For the first five years of that period the mother 
of the paupers was a widow, residing with them, and in the receipt of 
relief from the appellant township for the support of herself and the 
paupers, her legitimate children. Ever since the death of their mother, 
which took place three years before the application *for the order ^^ . ^ 
in question, the paupers had received relief from the township of *- 
Manchester. The paupers were respectively under the age of sixteen 
years, and anemancipated whilst so residing with their mother. (The 
case then stated the several points made at Sessions on behalf of the 
appellants and of the respondents.) 

If the Court of Queen's Bench should be of opinion that the pau- 
pers Were removable at the date of the making of the said order, such 
order was to be confirmed ; if the Court should be of a contrary opinion, 
the order to be quashed. 

PoMhleyy in support of the order of sessions. — The paupers are re- 
movable, inasmuch as, by stat. 9 & 10 Vict. c. 66, s. 1, the time during 
vhich they received relief from the appellant township must be excluded 
in the computation of the time necessary to render them irremovable 
by reason of a five years' residence. It is contended, on the other 
side, that the paupers did not, properly speaking, receive relief at all, 
their mother, with whom they were residing, being the person to whom, 

b2 



49 REGINA v, SHAVINGTON CUM GRBSTY. E. T. 1851. 

legally, the relief was administered, although the children shared in 
the benefit of it. But, in the first place, the case itself expressly finds 
that the relief in question was received by the mother << for the support 
of herself and the paupers :" and, secondly, the argument on the other 
side is founded. upon a misconception of the meaning of stat. 4 & 5 W.' 
4, c. 76, 8. 56. The provision relied on, namely that << any relief given 
to or on account of any child or children under the age of sixteen of 
any widow shall be considered as given to such widow," was framed for 
the. purpose of making the mother, as well as the children, chargeable 
^.^^ in respect of '^'relief immediately given to the children only : not 
^ of making the mother chargeable instead of the children. 
Oouchy contr^. — The question turns on the construction of stat. 4 k 

5 W. 4, c. 76, 8. 56 ; and it lies upon the respondents to prove that 
the present case does not fall within the general enactment of stat. 9 

6 10 Vict. c. 66, s.- 1, but within the proviso. Now the relief given to 
the paupers must, for legal purposes, be considered relief given to the 
widow alone. [Lord Campbell, C. J. — The construction adopted by 
the respondents would treat the relief as given to both mother and 
children, so that the mother would become removable by reason of such 
relief, although she was not the party immediately relieved.] That is 
what the respondents contend.^ [Erle, J. — Is not the head of the 
family liable for the relief afforded to the other members of it ?] That 
is by stat. 43 Eliz. c. 2, s. 7 ; and stat. 4 & 5 W. 4, c. 76, s. 56, con- 
tains a proviso that such liability is not to be destroyed by any enact- 
ment in the latter statute. 

Lord Campbbll, C. J. — ^I am of opinion that the paupers were re- 
movable, and that the order of sessions should be confirmed. The 
intention of stat. 9 & 10 Vict. o. 66, s. 1, was to make any pauper 
irremovable after aA unbroken residence of five years in any parish, 
unless (among other exceptions) during any part of such time he should 
have received parochial relief from any parish. Here it is found, by 
the case, that the mother, for five out of the eight years during which 
the paupers were in the parish, was in the receipt of relief *for the 



*51] 



support of herself and children. That is, in ^effect, a finding 
that the children received relief during that time. The construc- 
tion of stat. 4 & 5 W. 4, c. 76, s. 56, which is contended for by the 
appellants cannot be supported. That section, it is true, enacts that 
relief to the children shall be considered as relief to the parent ; but 
that is not meant to prevent the relief being considered as given to 
the children also ; the intention of the clause was to make the parent 
removable in respect of such relief, as much as in respect of relief 
actually and immediately given to the parent. I think, therefore, that 
the paupers must be considered to have received parochial relief from 
the appellant township within the meaning of stat. 9 & 10 Viot. c. 66, 
8. 1, and that they were removable in consequence. 



17 ADOLPHUS & ELLIS. N. S. 51 

Pattbson, J. — Stat. 4 & 5 W. 4, c. 76, which is incorporated with 
8tat. 9 & 10 Vict. c. 66, enacts, in sect. 66, that relief to the children 
shall be considered as relief to the parent. But I do not see why that 
enactment is to exclude the children from being considered as having 
received relief. The case here expressly finds that the relief was for 
the support of the children as well as of the mother : and I think, 
therefore, that they were receiving relief within the meaning of stat. 
9 4 10 Vict. c. 66, s. 1. 

WiOHTMAN and Erlk, Js., concurred. 

Order of Sessions confirmed* 



♦The QUEEN v. The Inhabitants of CALDECOTE. May 7. [*52 

PftQpera who bad reaided in parish 8. erer sinee 1835, were remoTed in 1845, under an order of 
jaatioea, nnappealed againet, to parish 0. They were delirered to the orerseer of C. at bii 
boose in C, remained there a few hours, and then returned to 8. the same day, and slept there 
the same night; an agreement haring heen made between the offieers of the two parishes, that 
the panpers should eontinne to reside at 8., and be relioTed at the cost of 0. They continued 
to reside at S. under this arrangement up to the passing of stat 9 A 10 VioL o. 06 ; alter 
which an order of justices was made for their remoral from 8. to C. : — 

Held, on appeal against the order, that the panpers were not irremorable by reason of a flr* 
yeais' unbroken residenoe in 8« • • 

On appeal against an order of justices, dated 12th May, 1847, re- 
moving Thomas Freer and his three children from the parish or town* 
ship of Stoke Golding in Leicestershire to the parish or township of 
Caldecote in Warwickshire, the Sessions confirmed the order, subject 
to the opinion of this Court on a case, by which the following facts 
appeared. 

The place of the last legal settlement of the paupers was in the 
parish of Caldecote, to which place they had bedn removed in the mid- 
dle of May 1845, under an order of justices, duly executed and unap- 
pealed against, bearing date 22d April, 1845. 

The case set out the order, which was for removal from Stoke Gold- 
ing to Caldecote, and which adjudicated the last settlement to be in 
Caldecote. 

The pauper Thomas Freer had resided in Stoke Golding from the 
year 1885 or thereabouts, with the exception of the period of his and 
his family's removal under the order of April, 1845, which took place 
as follows. At the' time of the execution of the last-mentioned order, 
the paupers were delivered to one of the overseers of Caldecote, at his 
house, which was not in the parish of Caldecote, but near thereto ; 
and there *they remained about one hour, and received from him p^.^ 
2t. 6d. for relief; after which they were delivered, at the request *■ 
of the said overseer, at the house of ihe other overseer of Caldecote, 
in that parish. They remained at his house but a few minutes, and 



53 REGINA v. CALDBCOTE. B. T. 1851. 

had some refreshment from his wife, and then returned to the parish 
of Stoke Golding on the same day, and slept in the parish of Stoke 
Qolding the same night. They had been at lodgings for about three 
or four months up to the removal, and had previously resided in a 
dwelling-house there for upwards of tsrelve months. The return of the 
paupers to Stoke Golding, as above stated, was in pursuance of an 
agreement entered into on the day of, and after, the removal, between 
the officers of that parish and of Caldeoote, that the paupers should 
return to Stoke Golding, and be relieved there, and that the relief to 
be afforded should be repaid by Caldecote : and this arrangement was 
adhered to until the passing of stat. 9 & 10 Vict. c. 66 ; since which 
time the officers of Caldecote have declined to repay any relief. 

If the Court of Queen's Bench should be of opinion that the Sessions 
were right in confirming the order of removal upon the facts above 
stated, the order of Sessions was to stand confirmed ; if of the contrary 
opinion, both orders to be quashed. 

Q-, T. White^ in support of the order of Sessions. — The execution 
of the order of removal, and the acquiescence of Caldecote at the time 
of such execution, create a break in the residence ; Regina v. Halifax, 
12 Q. B. Ill (E. C. L. R. vol. 64). It is true that, in the present case, 
the parties removed '*'under the order did not sleep in the parish 



*54] 



to which they were removedt But this does not destroy the evi- 



dence that the. officers of that parish acquiesced in the removal. Nor 
was there any animus revertendi in the paupers, to keep up the con- 
tinuity of residence : any disposition they might have to return was 
subject to the will of the officers. Regina v, Seend, 12 Q. B. 133 (£• 
C. L. R. vol. 64), is scarcely to be distinguished from the present case. 
If the paupers here had returned to Stoke Golding without the agree- 
ment on that point between the two parishes, they might have been 
treated by Stoke Golding as vagrants. [Lord Campbell, C. J. — Must 
there not be a pernoctation to create a cesser of residence ?] A cesser 
of inhabitancy is all that is necessary to destroy the irremovability : 
and the removal here was sufficient to create a cesser of inhabitancy at 
all events. [Erle, J. — In stat. 13 k 14 C. 2, c. 12, inhabiting and 
being settled seem to be treated as synonymous. Lord Campbell, C. 
J. — Is there any case where an absence for a few hours only has been 
held to have the effect of destroying the irremovability ?] An absence 
nnder an order of removal, if only for two hours, would be sufficient. 
[Erle, J. — Suppose the holder of a tenement in a parish conveyed it 
away, and immediately afterwards walked out and purchased another 
in the same parish : I am inclined to think that there would be a com- 
plete cesser of his residence in the parish during the time between the 
conveyance and the purchase. I do not think the pernoctation is neces- 
sary to create a cesser. Certainly it is not always sufficient to create 



17 ADOLPHUS & ELLIS. N. S. 64 

it : a mail coach guard may sleep out of his parish without ceasing to 
reside there.] 

*Macaulay and Q-. ffat/es, contrJt. — The doctrine that any con- p^.- 
strained absence, if lawful, even for the fraction of a day, suffices ^ 
to break the residence, is much too broad. There is no reason why the 
absence in the present case, which was for a few hours only, under an 
order of removal, should break the residence, any more than an absence 
under a writ of subpoena, or under a charge of felony, which was held, 
in Begina i^. Holbeck, 16 Q. B. 404 (E. G. L. R. vol. 71), not to cause 
a break. There, no doubt, the Court said there must be an animus 
revertendi, in order to preserve the continuity of residence : but this 
question does not arise here, as, in order to make an animus revertendi 
necessary, there must first be an interruption of residence : here there 
was no interruption at all. [Erle, J. — Here the absence, as the other 
side contend, is under an order expressly changing the residence. 
WiOHTMAN, J. — The very object of the order of removal was to prevent 
irremovability. Erle, J. — The enactment of stat. IS & 14 C. 2, c. 12, 
8. 1, was that a man might be removed within forty days after he had 
come to settle : the non-removal within that time was supposed to show 
acquiescence on the part of the parish, and so to establish a settlement : 
after that, by subsequent enactments, notice became necessary: and 
thus serving an office was made to ^ve a settlement as showing notice 
and so famishing evidence of acquiescence. You say that, if the parish 
took the pauper before a justice, in order to get rid of him, and the 
justice assented' to his removal, the non-removal in fact was equivalent 
to an acquiescence by the parish and to a continuance of residence.] 
No diDubt, under the old law, the pauper could be displaced, and there 
would be no acquiescence. But '*'stat. 9 & 10 Vict. c. 66, s. 1, 
creates an irremovability, not by a settlement inferred from 
acquiescence, but by a residence, in order that a man may not be dis- 
placed from the place where he has exercised 'his industry for five years. 
The principle therefore, to which allusion has been made, does not apply 
to the question of irremovability under the recent Act. The pauper, 
under the old law, would return from the parish of his settlement in 
violation of the law of settlement : here the parish receiving him back 
intended to renounce the right of removal. [Patteson, J. — The revo- 
cation, assuming that the agreement between the parishes can be treated 
as such, was after the removal.]- It is not an uncommon practice to go 
through the form of removing a pauper by an order of justices, for the 
purpose of ascertaining his settlement, and then to retransfer him to 
his original parish by agreement. The question in this case really 
turns upon the meaning of the word << resided" in stat. 9 & 10 Vict. c. 
66, s. 1. In 1 Nolan's Poor Law, p. 465, the place of residence is 
defined as that place to which a party « retires for the purpose of sleep- 
mg as the place of his ordinary and sufficient rest." [Erle, J. — Does 

VOL. XVII. — 8 



[*56 



56 REGINA v. OALDECOTB. B. T. 1861. 

a residence of five years mean a residence of five times three hundred 
and sixty-five nights ? In case of service the settlement shifts to the 
last place where the pauper, during the service, sleeps so as to make 
part of a complete forty days' residence in that place.] If an absence 
for more than one night would not operate as a break, it cannot be con* 
tended that an absence of one or two hours during one day would have 
that effect. To take the illustration suggested : a forty days' residence 
by sleeping would not be interrupted by a removal like that in the 
present case. [Lord Campbell, G. J. — Suppose a question arose upon 
^.-^ the "^right of a man to a parliamentary franchise, dependent upon 

^ his residence in the borough : it could hardly be said that an 
absence like that in the present case would be sufficient ground for 
holding that he had not resided in tne borough. However, the meaning 
of the word « residence" may be differently interpreted according to the 
different objects of the particular enactment. Erle, J. — The word 
(« inhabitants" has a peculiar and distinct meaning in the Statute of 
Bridges ; (a) there a man " inhabits" if he has rateable property within 
the county: but this is not the meaning of the word in all other 
instances.] As to there being no power to return, in the present case, 
without the consent of the respondent parish, Bex v. Barham, 8 B. & 
C. 99 (E. G. L. R. vol. 15), shows that the mere absence of such power 
does not necessarily break the residence : and there Lord Tenterden 
notices and meets the argument suggested from the impossibility of 
returning without a breach of the law. Bex v. Willou^hby, 4 A. & E. 
143 (E. G. L. B. vol. 81), confirms Rex v. Barham. According to the 
argument on the other side, if the pauper had passed one step into 
Stoke Golding, and there the parishes had rescinded their agreement, 
and the pauper had then of his own accord recommenced residing in 
Stoke Golding, the residence would have been broken. The question 
is not what constitutes a removal, but what breaks a residence. 

Cur. adv. vuU, 
Lord Gampbbll, G. J., on a subsequent day in this Term (May 10th), 
delivered the judgment of the Gourt. 
*'i81 ^® ^^^ ^^ opinion that the order of removal was *properly con* 

^ firmed by the Gourt of Quarter Sessions. This case appears to us to 
be governed by Begina v. Halifax, 12 Q. B. Ill (E. G. L. R. vol. 64), 
and Regina v. Seend, 12 Q. B. 138, establishing the doctrine (which we 
see no reason to doubt) that, in construing stat. 9 & 10 Vict. c. 66, an 
executed removal of the pauper under a valid order of removal interrupts 
the continuity of the residence in the removing parish. Here the 
paupers returned to the removing parish the same day on which they 
left it : but they had been removed from it under a valid order of , 
removal ; and they had been delivered to the overseers of the parish of 
their settlement. Not till after this removal was the agreement entered 

(a) StoL 22 H. 8, 0. 5. See 2 Iiut 70S. 



17 ADOLPHUS A. ELLIS. N. S. 68 

bto between the overaeera of the two parishes, respectirely, that the 
paupers should retam to the parish from which they had been removed, 
and, residing there, should be maintained by the parish of their settle- 
ment. There was a period of time daring which they had ceased to 
reside in the removing parish, and daring which they had no power to 
retnrn to it. The duration of this period we consider immaterial. The 
order of removal was valid, and was bonfi fide carried into execation. 

We do not see how this decision is at all contrary to the policy or 
the spirit of the Act ; for the continuity of residence cannot be thus 
interrupted so as to prevent the irremovability from being acquired, 
unless the pauper becomes chargeable ; and the Legislature only intended 
that the irremovability should be acquired by a five years' residence 
without bringing any charge upon the parish. A fictitious chargeability 
by fraudulent relief is guarded against by penalties ; (a) and the appre- 
hension of such a possibility cannot affect the decision of a case p^.g 
where the removal took place before the passing of stat. 9 & 10 '- 
Vict. c. 66, and could not have proceeded from any fraudulent motive. 

The rule for quashing the order of sessions must therefore be dia- 
charged. ' Order of Sessions confirmed. 

(a) Stot 9 A 10 Vlot o. 66, a. 6. 



The QUEEN v. The Inhabitants of PRIEST BUTTON. Majf 7. 

Stel. 13 A 13 Vict o. 103, f . S, wbieh proTides that the ooita iDonrred in the ranovftl and malD^ 
ten»nee(a) of a lanatio panper removed to any asjlam, and who, if not a lunatic, would hare 
been exempt from removal under stat A 10 Vict e. 66, shall be borne by the common fhnd 
•f the Union comprising the parish wherein such lunatic was resident at the time of such 
removaJ, applies to a Union formed under Gilberf a Ae^ 22 O. 8, a. S3. (And see now atat 
16 A 17 Vict 0. 07, a. 102.) 

On appeal against an order of justices, dated 4th May, 1850, direct- 
ing the treasurer of the guardians of the Lancaster Poor Law Union 
to pay to the guardian and oyerseers of the township of Over Kellet 
in the county of Lancaster, and to the treasurer of the Lancaster 
County Lunatic Asylum, certain sums of money in respect of the 
expenses incurred in the care and maintenance of James Bland, a lunatic 
pauper, confined in the said asylum, under an order of justices, dated 
10th October, 1848, the Sessions confirmed the first-mentioned order, 
subject to the opinion of this Court upon a special case. 

The case set forth the order of 4th May, 1860, which recited the 
remoYal of the pauper from Over Kellet to the Lancaster Asylum under 
the justices' order (with the necessary formalities), the complaint of the 
guardians of Over Kellet, being in a Union called the Caton UnioUi 

(a) See Oreiaeera of Wigton «. Orefaeera of Snaith, 16 Q. B. 496 (B. 0. L. IL toL 71). 



M REGINA V. PRIEST HUTTON. B. T. 1851. 

^^^^ formed vnder Btat. 22 O. 8, *c. 83, and an inquiry by two justices 



»60] 



into the settlement of the lunatic, and adjudication by them that 



Priest Hutton, in the Lancaster Union, was the place of his last legal 
settlement ; that the lunatic was chargeable to Over Kellet, and was 
receiving relief therefrom ; and that moneys had been paid by Over 
Kellet to the treasurer of the Lancaster Asylum for the lodging, &c., of 
the lunatic ; and it ordered the treasurer of the Lancaster Union to 
pay to the guardian and overseers of Over Kellet 202. 6«. 8(2., being 
the reasonable charges of lodging, &c., paid within twelve calendar 
months next before the date of the order, and a weekly sum of 7«. Id. 
fixed by the committee of visiters, and appearing to the justices to be 
reasonable, &c., or such other weekly sum as the committee of visitors 
should thereafter reasonably charge, &c. 

The case then stated that J. B., the lunatic mentioned in the order 
of May 4th, and, at the time of such order, duly confined in the said 
asylum under the provisions of the Acts relating to pauper lunatics, 
was lawfully settled in the township of Priest Hutton in the county of 
Lancaster, but had been continuously resident in the township of Over 
Kellet for more thafl five years before the making of* the order, and 
before becoming insane, and would, under stat. 9 & 10 Vict. c. 66, have 
been irremovable from Qver Kellet as a pauper, had he continued sane. 
Priest Hutton is a township within the Lancaster Poor Law Union 
f<}rmed under the provisions of stat. 4 & 5 W. 4, c. 76 : and Over Kellet 
is a township within the Gaton Union, which is formed under the pro- 
visions of stat. 22 G. 8, c. 83. No order had been made on the Caton 
Union or the township of Over Kellet, under sect. 61 of stat. 8 & 9 
Vict. c. 126, for the payment of the charges of the lodging, maintenance, 
^^^^ "^medicine, clothing, and care of the lunatic J. B. in the asylum 
-^ to which he was removed. The several allegations in the said 
order, showing.jurisdiction in the justices to make such order, are true. 
It was contended by the appellant township that, by the joint operation 
of stat. 9 & 10 Vict. c. 66, of stat. 11 & 12 Vict. c. 110, s. 3, and stat. 
12 & 13 Vict. c. 103, s. 4, the appellant township was discharged from 
any liability to the expenses of the removal of the lunatic pauper to 
the asylum, or of his residence there ;(a) and that the jurisdiction of 
the justices to make the order in question was thereby taken away. It 
was further contended, by the appellant township, that they were also 
discharged from such liability, and the jurisdiction of the justices to 
make such order was taken away, by stat. 12 & 13 Vict. c. 103, s. 5, 
although the respondent township is in a Gilbert Union. This Court 
confirmed the order. The question for the opinion of this Court was 
stated to be. Whether the jurisdiction of the justices to make the said 
order is taken away by the operation of the said statutes, or any of 

(a) As to this, Overseers of Wigton «. Overseers of Snailh, 16 Q. B. 496 (E. C. L. K. roL 71), 
WM cited in the argament in support of the order of Sessions. 



17 ADOLPHUS 4; ELLIS. N. 8. 61 

them : the order to be set aside or confirmed according to the judgment 
of the Coart on these points. 

B, Rail, in sapport of the order of Sessions. — The main question 
is, how far a Union formed under Gilbert's Aet is within the provisions 
of stats. 11 k 12 Vict. c. 110, and 12 k 13 Vict. c. 103, respecting the 
chargeability of the common funds of Unions with the maintenance of 
lunatic paupers. The language of these statutes themselves shows that 
they were intended to *apply only to Unions formed under stat. ^^^^ 
4 4 5 W. 4, c. 76. In stat. 11 & 12 Vict. c. 110, s. 1, the costs •- 
of the relief and burial of wandering poor are made chargeable to the 
« common fund of 8ueh Union;" the Unions referred to being, in a 
previous part of the same section, described as Unions <« formed or to 
be formed under the provisions of the said Act," namely, as the pre- 
amble shows, stat. 4 & 5 W. 4j c. 76. In sect. 3, which relates to the 
chargeability of paupers rendered irremovable by stat. 9 & 10 Vict, 
c. 66, the words ^^sueh Union" are still used. Now stat. 12 & 13 Vict, 
c. 103, which continues the provisions of stat. 11 & 12 Vict. c. 110, 
relative to the liabilities of the common funds of Unions, further 
enacts, in sect.- 5, certain provisions for payment of • the expenses 
incurred in obtaining orders of justices for the removal to the asylum 
of pauper lunatics who, if not lunatics, would have been irremovable 
under stat. 9 & 10 Vict. c. 66, and consequently within the operation 
of stat.. 11 k 12 Vict. c. 110, s. 3, just referred to. The provisions* 
of stat. 12 & 13 Vict. c. 103, s. 5, therefore, must be considered as 
supplementary to, and in pari materia with, those of the preceding 
statute ; and then the same interpretation must be given to the word 
« Union," in those provisions, as attaches to the word «such Union" in 
stat. 11 k 12 Vict. c. 110; that is. Unions formed under stat. 4 & 6 
W.»4, c. 76, only. In fact, sect. 5 of stat. 12 k 13 Vict. c. 103, ori- 
ginated in the decision in Regina v. Leaden Roothing, 12 Q. B. 181 
(£. C. L. R. vol. 64), which was a case turning on the construction of, 
among other Acts, stat. 9 & 10 Vict. c. 66. Under stat. 22 G. 3, o. 
83, the contributions of the different parishes to the Union '*'were p^p^ 
fixed, once for all ; but under stat. 4 iSc 5 W. 4, c. 76, they vary ^ 
from time to time, according to the ability of the parishes. This may 
have induced the Legislature to confine the enactment which laid the 
parochial expenses on the Union to Unions formed nnder stat. 4 & 5 
W. 4, c. 76. {M. SaU then argued upon other points of the case, as 
to which a report is unnecessary.) 

Pashley, contri. — Sect. 109 of stat. 4 & 5 W. 4, c. 76, expressly 
states that the word <« Union," as used in that Act, is to include Unions 
formed under stat. 22 G. 3, c. 83. The argument, therefore, of the 
appellants, founded on stat. 11 k 12 Vict. c. 110, and stat. 12 k 18 
Vict. c. 103, being supplementary to, and in pari materia with, stat. 4 
and 5 W. 4, c. 76, teUs against them. If, as is contended, there be a 

F 



REGINA V. PMEST BUTTON. E. T. 1861. 



difference between the common fond of a Union under stat. 4 & 5 W. 
4y c. 76, and the general fond of a Union under stat. 22 G. 8, c. 88, the 
language of stat. 10 and 11 Vict, c 110, 8. 1, which is clearly supple- 
mentary to, and in pari materifi with, stat. 9 & 10 Vict. c. 66, and 
consequently with stat. 4 & 5 W. 4, c. 76, also, charges «< the common 
or general fund" of the Union with the expenses of the maintenance 
of paupers in the cases there specified ; which shows that the Legisla- 
ture intended this provision, and the previous and subsequent enact- 
ments of a similar nature, to apply to both kinds of funds. (He also 
argued on the other points.) 

Lord GAMPBEtL, C. J. — The real question is, Whether a Union 
formed under Gilbert's Act, 22 G. 8, c. 88, falls within the provisions 
of stat. 12 & 18 Vict. c. 103, s. 5. I think that it clearly does, if we 
*B41 ^^^^ ^^ ^^^ *words of the latter Act their natural construction. 

-^ I see nothing to warrant us in coming to a different conclusion. 
Sect. 109, the interpretation clause, of stat. 4 & 5 W. 4, c. 76, which 
must be taken to apply to all subsequent statutes in pari materift, 
dedares expressly that the word <« Union" is to include a Union under 
Gilbert's Act. Tito order of Sessions, therefore, is bad, and must be 
quashed. 

Pattbson, WiaHTHAN, and Erlb, Js., concurred. 

Order of sessions qua8hed.(a) 

(a) Sm the late Luiwtie Afii, 16 A 17 Viet e. 97, which doei not repeal ftat 13 A IS Vlot cl 
lOS, bat makei a new proTiaion (aect 102) for the caaei contemplated In leet. 5. 



The QUEEN v. JOHN DALE. May 7. 

Declaration, In scire fadai on a reeognliance to keep the peace, stated thatlhe reoognlianee wa« 
acknowledged " before Lee P. Townshend, Bflqaire, and J. H. Harper, Eeqaire," two jiistioet of 
the peace :-<-Held, on demnrrert that the Christian names of the jostiees did not appear to be 
insufficiently stated. 

It is not a ground for demnrring to such a declaration, that the reoognisanee is not shown to be 
in oomplianoe with the Crown Office Rules, HiL T. 1844. 

Dbclaration in scire facias, on a recognisance to keep the peace, 
against defendant as one of the sureties. The declaration stated that 
heretofore, &c., in the county of Chester, to wit, on., &c., " before Lee 
P. Townshend, Esquire, and J. H. Harper, Esquire, two of our keepers 
of the peace and justices assigned," &c., came Joseph Molyneux, of, &o., 
John Gawley, of, &c., and John Dale, of, &c., and then, before the said 
two justices, in the said county, by a certain recognisance, severally 
acknowledged themselves to be indebted, &c., on condition that the said 
Joseph Molyneux should keep the peace towards John Wovsley, of, ftc^ 
^... for six months. *The declaration then averred a breach of the 
^ peace by the said Joseph Molyneuz, and the forfeiture of Joha 
Dale's recognisance in consequence. 



17 ADOLPHUS & ELLIS. N. S. 66 

Demurrer. Joinder* 

The points stated for defendant were : 1. « That it does not appear 
by the writ that the Crown Offipe Rules of Hilary Term, 1844,(a) Nob. 
24 and 25, have been complied with : 2. That the Christian names of 
the magistrates before whom the recognisance was taken are not suffi- 
ciently stated." 

W. H. Oolej in support of the demurrer. — The writ is irregular. 
[Lord Campbell, C. J. — ^You say that the writ itself ought to show, 
on the face of it, that the regulations, in respect of the recognisance, 
were complied with.] Tes. The second objection b, that the Christian 
names of the magistrates are not properly stated. The cases are con- 
flicting : Miller v. Hay, 8 Ezch. 14,t is an authority in support of t&is 
objection ; Lomax v. Landells, 6 Com. B. 677 (E. C. L. R. vol. 60), is 
against it. [Erlb, J.-^Is there any decision that all proceedings are 
void in consequence of such an irregularity ? In a commission of oyer 
and terminer I have seen the initials only of the Christian names in- 
serted ; would that render inyalid all sentences pronounced by a Judge 
named in the commission ? In actions on bills of exchange, and other 
civil actions, the objection has been taken on special demurrer. But I 
recollect no instance of the point having been raised in criminal pro- 
ceedings.] The objection is, no doubt, a technical one ; still the part 
of the declaration in which the irregularity occurs is material, and 
cannot be treated as mere inducement. *The proceeding is itself ^^^^ 
vexatious. [Erlb, J. — ^Is there any instance of such a point being '- 
taken on a recognisance to keep the peace ?] A scire facias on such a 
recognisance is not an ordinary proceeding. 

Cozanf contri, was stopped by the Court. 

Lord Campbbll, C. J. — I see no hardship upon the defendant in 
bringing a scire facias upon such a recognisance. If the objection be fri- 
volous, we must overrule it. There is no authority for holding the scire 
facias to be void for the recognisance not appearing to comply with 
the Crown Office Rules. With respect to the second objection, I do 
not see that there ia any reason for supposing that the magistrate's 
actual name is not "J. H. Harper." The objections which might be 
raised as to this' point upon a bill of exchange do not appear to me to 
apply to proceedings like these. Nor can I acquiesce in the distinction 
suggested, in Lomax t^. Landells, 6 Com. B. 681 (E. C. L. R. vol. 60), 
between a consonant and a vowel. There is no doubt that a vowel 
may be a good Christian name ; why not a consonant 7 I have been 
informed by a gentleman of the bar, sitting here, on whose accuracy 
we can rely, thai he knows a lady who was baptised by the name of 
«« D." Why may not a gentleman as well be baptised by a consonant 7 

Paitbson, J. — The first objection is upon a mere point of practice, 

^ (a) Ooner'a Crown Ofioe Formi^ pp. 1, A. 



66 KEGINA v. DALE. E. T. 1851. 

which does not affect the record. The second also appears to me to be 
quite unfounded. 

WiQHTMAN and Erlb, Js., concurrecl- 

Judgment for the Crown.(a) 

(a) Sea, u to the lint pointy Regina v. Irwin, 9 Iriah Eq. Rep. 5i6. 



*67] *In the Matter of JAMBS EDMUNDSON. Majf 9. 

An ai^adioation bj two joatieei, under The Lands Claasee Conaolidation Act, 1845, and Railwaji 
ClanBea Consolidation Act, 1845, of the sam (below bOl.) to be paid by a railway company as 
oompensation to a party whose lands hare been injuriously affected by the exercise of their 
statutory powers is an order within stat 11 A 12 Viet. o. 43, s. 1, and is bad, under sect 11, 
if the complaint on which the order is founded be made more than six calendar months after 
the cause of oompUunt arose. 

Such order may be brought up by certiorari, to be quashed. 

R. Hall, in last Hilary Term, obtained a rule calling on Joseph 
Gh'eenwood and William Bushfeild Ferrand, Esquires, two justices for 
the West Riding of Yorkshire, to show cause why a certiorari should 
not issue to remove into this Court the order after mentioned, on the 
grounds (among others): "that the said justices had no jurisdiction in 
the matter respecting which the said order was made ; that the said 
order shows, on the face thereof, and the fact also is, that the cause or 
several causes of complaint therein mentioned did not, nor did any of 
them, arise within six calendar months before the making of fhe said 
order or the making of the complaint, or laying of the information, 
whereon the said order was made ; that the said justices had notice, on 
the hearing, that the said cause or causes," &c., << did not, nor did any 
of them, arise within six calendar months as aforesaid ;" « that the sum 
awarded comprises compensation for injuries and damage for which the 
justices had no jurisdiction to award compensation, to wit :" the said 
trespasses, and the compensation awarded, in respect of the road in the 
order mentioned : « that the supposed damages and injuries were not 
done in the exercise of any statutory power ; that none of the notices 
or prooeedings under which alone the said damages and injuries would 
*({R'\ ^^ ^^^^ ^^ ^^^ exercise of the statutory powers referred to *in the 
^ order, so as to give jurisdiction to justices to award compensation 
in that behalf, are alleged on the face of the said order, nor were any 
such notices ever given or proceedings ever taken." 

The order, a copy of which was annexed to the affidavits on behalf of 
the Company, recited a complaint made 18th September, 1850, where* 
in it was stated before the said justices that the said James Edmundson 
was, at the time, &c,, and still was, the occupier of certain closes and 
a road adjoining the railway of the Company ; that the CAipany, in 



17 ADOLPHUS & ELLIS. N. S. OiJ 

exercise of their powers under their special Act (a) and the other acts 
incorporated therewith,(i) in the years 1846, 1847, during the forma- 
tion of the said railway and the progress of the works thereof, did great 
damage and injury to the said closes, and to certain of the fences, &c., 
of the said closes, and to the surface, &c., of the said road, by throw- 
ing, &c., large quantities of timber, wood, and stone in and on the said 
closes and road, &c., and by causing part of one of the said closes to 
be flooded with water, &c. ; for which damage and injury, amounting to 
ZIL 15»., the said J. E. had not received aoy compensation : that the 
amount of the said compensation could not be settled by '^'agree- ^^^^ 
ment between the said J. E. and the Company; and that the ^ 
proper summonses and notices had been sent to the Company, who had 
not appeared before the said justices. The order then proceeded to 
state that the justices, having heard the n^atter of the said application, 
and examined J. E. and his witnesses upon oath, and no evidence being, 
tendered on the other side, did << ascertain, determine, and settle" the 
said amount of compensation at 81{. 15». ; and did << adjudge the said 
Company to pay the same" to the said J. E., with 62. 13«. 8d. costs, <ton 
demand." 

Joseph Addison (on behalf of Mr. Ferrand) now showed cause. — A 
certiorari cannot issue to bring up this order. It is an order of adjudi- 
cation made by two justices under The Lands Clauses'' Consolidation 
Act, 1845, 8 & 9 Vict. c. 18, and The Railways Clauses Consolidation 
Act, 1845, 8 & 9 Vict. c. 20, which are incorporated with the two spe« 
cial Acts of the Company. In sects. 145^ 156, respectively, of these 
statutes, it is enacted that no proceeding in pursuance of them or any 
Act incorporated therewith shall be removed by certiorari or otherwise 
into any of the Superior Courts. Clauses expressly taking away the 
right of certiorari have always been strictly enforced. The cases are 
collected in Archbold's Crown Practice, p. 155. It is objected that, by 
8tat. 11 & 12 Vict. c. 43, s. 11, the order is bad, inasmuch as the mat- 
ter of complaint did not arise within six calendar months before the- 
making of the complaint. The objection must be maintained to the 
extent of showing want of jurisdiction ; otherwise this Court cannot 
review the decision of the *magistrates, no other objection appear- p^^ 
ing on the face of the order ; Begina v. Bolton, 1 Q. B. 66 (E. C. *- 
L. B. vol. 41). * 

But, further, stat. 11 & 12 Vict. c. 48, s. 11, does not apply. It 
refers only to the recovery of forfeitures and penalties. Here the order 

(a) Sut 8 A 9 Viet c. xzxriiL, local and personal, pablio» ''For enabling The Leed^aod 
Bradford Railway Company to make a railway from Shipley to Colne, with a branch to Haworth.* 
Sect 2 incorporates The Lands Claosea Consolidation Act, 1845, and (exoept so far as relates te 
loUi) The RaUwnys Clauses Consolidation Act, 1845 ; and enacts that the prorisions of stat 7 A 
8 Viet c lix. (except so far as repealed or altered) shall operate as if re-enaeted. 

(h) The other Act mentioned in the argument was 7 A 8 Viet c lix., local and personal, pnblic; 
"for nuking a^lway from Leeds to Bradford, with a branch to The North Midland RaUway.'* 
VOL. XVII.— 9 F 2 



70 RE EDMUNDSON. E. T. 1851. 

is an adjadication between the parties, made at the request of both. 
If the section were held applicable to cases like the present, the resuh 
would be that the time for laying the complaint would be limited only 
whe^e the amount is under 502., and the claim consequently within the 
jurisdiction of the magistrates, by sect. 22 of The Lands Clauses Con- 
solidation Act. [Lord Campbell, C. J. — What is the complaint re- 
ferred to, in Stat. 11 k 12 Vict. c. 48, s. 11, as "such complaint?"] 
It is described in sect. 1, as a complaint << made to any such justice or 
justices upon which he or they have or shall have authority by law to 
make any order for the payment of money or otherwise." This is not 
an order to pay money, in the sense contemplated by that section : the 
essence of this order is the justices' approval of the amount. [Lord 
Campbell, C. J. — All judicial orders for payment of money must be 
preceded by an adjudication as to the matter in dispute.] Sect. 2 of 
the same statute, which empowers justices to issue their warrant for 
the apprehension of the party against whom the complaint has been 
made, and sect. 19, which empowers them, in certain cases, to imprison 
such party, if convicted, with hard labour, show that the statute was 
not intended to apply to a claim of a civil nature, but only to com- 
plaints and informations partaking of the characteir of criminal pro- 
ceedings. It cannot apply to the case of a claim against a corporate 
*711 '^'^^y- [J^^^ Campbell, C. J. — Would it not enable magistrates 
^ to adjudicate on a claim for payment made against a corporate 
body by a servant hired by such corporation ? The case of master and 
servant is not within the list of excepted cases in sect. 85.] It may be 
questioned whether stat. 4 O. 4, c. 84, applies to corporations at all. 
In cases within The Lands Claoses Act, the adjadication is in the na- 
ture of a statutory award : it may be made upon ^the application of 
eitheV party. If the Company asked for the order, in what sense could 
it affect them, so as to fall within sect. 11 & 12 Vict. c. 43, s. 11 ? 
[Erlb, J. — How could such a case occur ? The justices, under sect. 22 
of The Lands Clauses Act, have jurbdiction only when the claim is 
under 50^ How can the company assume that the claim is so limited?] 
There might have been a claim made in fact. Sects. 140, 142, of The 
Bailways Clauses Act, may be relied on, the former of which has the 
phrase «< ordered to be paid." But the acts of the magistrates, there 
pointed to, are not acts done in the execution of the ordinary powers 
of justices of peace; and to such only stat. 11 & 12 Vict. c. 48, a. 11, 
applies. It will also be contended that the subject-matter of complaint 
in the present case was not one which is referred to the determination 
of two justices by Th« Lands or The Railways Clauses Consolidation 
Act, 1845, the latter of which, in sect. 44, lays down the same course 
of proceedings in respect of disputed compensation as the former, which 
sets but those proceedings at length in sects. 22,. 28, 24. [Erlb, J. — 
I do not think the order here is made under any of theso^ctions : they 



17 ADOLPHUS k ELLIS. N. S. 71 

ipply to cases of disputed compensation for injuries done jbo parties who 
ba?e had notice from the company *that their lands have been p^,.^ 
taken, and whose lands have afterwards been injuriously affected ^ 
through such taking : that is clear from the words of sect. 22. The 
present case is that of a neighbouring landowner, whose property has 
beemdamaged by the works of the Company.] It has been decided, in 
Begina v. Eastern Counties Railway Company, 2 Q. B. 847 (E. C. L. R. 
vol. 42),(a) that compensation may be claimed, under clauses of a special 
Act not substantially differing from the clauses under discussion, for 
injury done to lands which have not been taken by the Company. 
[Eelb, J. — Sect. 68 of The Lands Clauses Consolidation Act, 1845, is 
the clause corresponding to the clauses there decided upon.] Sect. 6 
of The Railways Clauses Act clearly includes the present case. It 
enacts that compensation is to be made, by the Company, to the owners 
and occupiers of i< and all other parties interested in any lands taken 
or used for the purposes of the railway, or injuriously affected by the 
construction therof," « for all damage sustained by such owners, occu- 
piers, and other parties, by reason of the exercise, as regards such 
lands, of the powers" by this Act, or the special or any incorporated 
Act, vested in the Company ; the amount of such compensation, except 
where it is otherwise provided by this or the special Act, to be ascer- 
tained and determined according to the provisions of The Land Clauses 
Act. Now the order itself here states, on the face of it, that the acts 
in respect of which compensation is claimed were acts done in pursu- 
ance of the powers vested by statute in the Company. They clearly 
amounted to a temporary occupation under sect. 32 of The Railways 
^Clauses Act ; all compensation in respect of which is, by sect. 44 ^^.^ 
of the same Act, to be determined according to the provisions of ^ 
The Lands Clauses Act. [Eblb, J. — That is, in the present ctfse, by 
two justices, the amount being under 502. : the question, therefore, after 
all, is whether the order for payment is within stat. 11 & 12 Vict. c. 48, 
8. 11.] The argument then is that this is an assessment of amount, 
and not an order ; and, further, that, to raise the objection under stat. 
11 k 12 Yict. c. 43, s. 11, the order, if it be one, must show upon the 
face of it that the matter of complaint did not arise within six calendar 
months before the making of such order. 

T. F, JEUU (for Mr. Greenwood) did not oppose the rule. ^ 

JZ. HaUj contri^ was stopped by the Court. 

Lord Campbell, C. J. — We understand it to be the wish of both 
parties that we should pronounce at once as to the validity of this order, 
without deferring our judgment till it is brought up by certiorari. I 
am of opinion that stat. 11 k 12 Vict. c. 48, s. 11, applies to the pre- 
sent case, and that the order is bad, inasmuch as the matter of com- 
plaint did not arise within six calendar months before the complaint 

(a) See aioYW «. North Staffordihira RaUwaj Compftny^ 16 Q. B. 912 (B. C. L. R. roL H). 



73 RE EDMUNDSON. B. T. 1851. 

was made. I think it is clear that this is an otder within the Fcope 
and meaning of the statute. The words of sect. 1, with reference to 
which sect. 11 must be read, are very broad ; they are «< any order for 
the payment of money or otherwise.'' The present order is made under 
the provisions of the Railways Clauses Consolidation Act, 1845. That 
^. .^ Act clearly treats as orders the ^decisions by justices for which 



►74] 



The Lands Clauses Act provides in cases of disputed compensa- 



tion, by sects. 22, 24. Sect. 140 of The Railways Clauses Act speaks 
of the sums awarded in such cases as <« ordered to be paid" by the jus- 
tices ; who, in default of payment, may issue their warrant of distress. 
It has been contended that such an order amounts only to an award ; 
but it is, at all events, an award under a statutory power, which power 
enables the referee to order payment of the sum awarded, and to issue 
a warrant of distress in default of payment. That is clearly an order 
within' Stat. 11 k 12 Vict. c. 43, s. 11. Mr. Addison contends that 
the machinery of stat. 11 & 15 Vict. c. 43, does not apply to a corpo- 
ration : there is, however, enough in that Act to bring a corporation 
within its scope, inasmuch as it comprehends a power of distress for 
raising sums which the magistrate orders to be paid. The order, there- 
fore, as it is not in accordance with the provisions of that section, ia 
bad. 

Pattbson, J. — The question in this case is whether stat. 11 & 12 
Vict. c. 43, s. 11, applies to an order of justices under the provisions 
of the Railways Clauses Consolidation Act, 1845. Sect. 1 of the for- 
mer Act defines the orders to which sect. 11 refers, as «<any order" by 
justices «< for the payment of money or otherwise." I was in some 
doubt under what particular section of The Railways Clauses Act or 
The Lands Clauses Act, with which the former, as regards cases of dis- 
puted compensation, is incorporated, the order in the present case was 
made. It appears, I think, to have been under sect. 6 of the former 
Act, which provides for cases of disputed compensation to parties whose 
^-_ lands *have been <Mnjurious)y affected." Those cases are clearly 
-^ to be settled, where the claim is under 502., according to sect. 22 
of The Lands Clauses Act ; that is, by two justices, who have power, 
by sect. 24 of the same Act, to << hear and determine" the cases so re- 
ferred to them by the Act. No particular mode of enforcing the deci- 
sion is provided by the Act, either where the question is referred to 
two justices, or where it is brought before a jury : and the question as 
to the mode of recovering the sum awarded, whether by mandamus, or 
an action of debt, or otherwise, has been frequently raised. It seems 
to me that, as sects. 22, 24, provide no method of enforcing payment, 
the case is within sect. 140 of the Railways Clauses Act, and the paymtot 
may be enforced by distress. But for this there must be an order. 
That will bring the case within stat. 11 k 12 Vibt. c. 48. Therefore, 
the complaint, here, not having been made, as sect. 11 of that Act 



17 ADOLPHUS A ELLIS. N. 8. 76 

directs, within six calendar months after the cause of complaint arose, 
the jastices had no jurisdiction to make such order. 

WiOHTMAN, J. — ^It is not very important to ascertain the precise 
nature of the damage for which compensation has been claimed in the 
present case : it comes, I think, at all events, within sects. 22, 24, of 
The Lands Clauses Act, by which disputed cases of compensation to 
parties whose lands have been «« injuriously affected," if the damage be 
under 502., are to be settled by two justices. The question is, whether 
an adjudication of this description is an order within stat. 11 & 12 
Vict. c. 48, s. 11. It is true that the word «< order" is not used in the 
instrument of adjudication ; but it is clearly in the nature of an order, 
and within the very broad '''language of the first section of stat. p^-/. 
11 ft 12 Vict. c. 43. That being so, there can be no doubt that ^ 
it is bad by reason of the complaint having been made more than six 
calendar months after the cause of complaint. 

Erlb, J. — It seems to me that this order has been made under sect. 
24 of The Lands Glauses Consolidation Act. And if it is within stat. 
11 ft 12 Vict. c. 48, it is bad, not being within the restrictions of sect. 
11 of that Act. I think that a decision by the justices of the sum that 
is to be paid amounts to an order to pay that sum : and the language 
of sect. 140 of the Railways Clauses Act clearly shows that it is 
treated by that statute as such ; consequently the order in question is 
within stat. 11 ft 12 Vict. c. 48, and is therefore bad, for the reason 
L have stated. It is of great importance that it should be known, as 
magistrates have exclusive jurisdiction in cases like these, where the 
amount claimed is under 502., that the time for making the complaint is 
limited to six months after the cause of complaint arises; and that, where 
the amount is above 502., the time is either unlimited, or is, at all ewnts, 
not limited by stat. 11 ft 12 Vict. c. 48, s. 11. Rule absolute. 



*The QUEEN v. LONGHORN. May 12. [*77 

Under stat Z k i Viet e. 64, s. 2, whieh, for the repayinent to pariehea or eoantief of ezpensef 
ineorred ia the nainteiiAnce, Ae., of oriminal lunaties, enables jnsticee to order the OTerseers 
of toy parish where money, goods or chattels, of the Innatie, shall be, to selie the money, or 
seize and sell the goods and obattels, Justices oannot aathoriie the orerseers to lery a debt 
churned as dae to Uie Innatio, by ordering them to seiie a sum of money in the possession of 
the aUeged debtor. ^ 

And, on motion for a mandamus, at the Instance of snob oTerseM^ ealUng upon the alleged 
debtor to pay theiA such money, the proseontors addacing eridence to show that snch debt was 
doe, and that the warn demanded was in the possession of the aUeged debtor, the Conrt, on 
caose shown, refused a mandamus. 

A BULB nisi was obtained, in last Hilary term, for a mandamus call- 
ing upon Edward Longhom to deliver up to the overseers of the poor 
of Old Hutton and Holmescales in the county of Westmoreland the 
•urn of 134Z. 18«. 6d., alleged to be in his hands and to belong to 



77 REOINA V. LONGHORN. E. T. 1851. 

Richard Simpson, a Innatio. The material facts shown on affidavit for 
and against the rale were as follows. 

Richard Simpson, a prisoner in the gaol for Westmoreland under 
charge of murder, was tried on 9th August, 1845, and acquitted on 
the ground of insanity. Two justices, with a physician and a surgeon, 
afterwards, and while Simpson was still a prisoner, certified to a Sec- 
retary of State, according to stat. 3 & 4 Yict. c. 54, s. 1, that Simpson 
was then insane : and he was, by the Secretary's order, removed from 
the gaol to a lunatic asylum, where he remained at the time of the 
present application. Two justices, under sect. 2 of the statute, made 
an order (November 8, 1850), adjudging Simpson's settlement to be in 
the township of Old Button and Holmescales in Westmoreland ; and, 
it having been proved to them (as the order recited) that the lunatic 
had lands and tenements in that and other townships, and that Edward 
Longhorn of Old Hutton in the said county, shoemaker, was possessed 
of a large sum, viz., 195Z. 4«. lOd., of the property of the lunatic, which 
^^^^ had arisen from '''the sale of an estate belonging to him, called 
■^ Owebank and Fellend, in the first-mentioned township, the two 
justices did order and authorize the said overseers to take and receive 
so mach of the annual rents and profits of the said lands and tenements, 
<( and to seize so much of the said money so in the possession of {he 
said Edward Longhorn as aforesaid, as may be necessary" to pay the 
charges of inquiring into the insanity, &c., and of the removal, and the 
maintenance, clothing, medicine, and care of the lunatic, incurred or to 
be incurred, &c. The order also recited proof given to the justices of 
the several sums making up the expense incurred as above mentioned ; 
and it ordered and directed the said overseers to seize so much of 
the money so in possession, &c., and to receive and take so much of 
the annual rents, &c., as might be necessary to pay the several specified 
sums, making in the whole 134/. 18«. 6«. One of the overseers served 
a copy of the order upon Longhorn, and required him <« to pay" to the 
said overseers « so much of the money so in the hands of the said E. L. 
as aforesaid as would be necessary to pay the said several sums afore- 
said, making in the whole," &c. Longhorn referred the matter to hia 
attorney, who answered that Longhorn could not safely pay over the 
said sum of 1342. 18«. 6d. ; and it was not paid. 

Longhorn himself made affidavit that, in 1842, he lent 500Z. to Simp- 
son ; who, to secur^ayment thereof, with interest, gave him a mort- 
gage, dated February 12, 1842, of a messuage, &c., called Owebank 
and Fellend, with proviso for redemption by payment at a day named 
(the day following), and power, on default, to sell, receive the purchase- 
money, and, after 'retaining the debt, interest, and costs, to pay the 
overplus, if any, to the use of '^'Simpson, his executors, adminis- 



*79] 



trators, or assigns, or as he or they should direct. That, on 1st 



June, 1849, default having been made, Longhorn sold the estate, re- 



17 ADOLPHUS & ELLIS. N. S. 79 

oeived the parchase-money, and, retaining his debt, interest, and costs^ 
paid the overplus, amounting to 195Z. 4«. 10«., into the Bank of West- 
moreland in his own name : that it still remained there : and that he 
had no money or property, or control over money or property, of Simp- 
son, «( except such trust fund." That, after Simpson was in custody 
for the murder, and before his trial, he executed a deed conveying all 
his real and personal estate to Thomas Webster and two others, for 
payment of the costs of his defence, and his debts, and with an ulti- 
mate trust for the benefit of his family. That, since the sale, and 
receipt of purchase-money, by Longhorn, Webster had applied to him 
for the overplus, which he had declined to pay, being informed by his 
attorney that questions might be raised as to the validity of the deed 
executed while Simpson was in custody for the said offence, and as to 
Simpson's competency to execute it. That, on being served with the 
said order of justices, Longhorn, by his attorneys, obtained counsers 
advice, which was that he could not safely direct any part of the over- 
pins to be paid to the overseers ; nevertheless he had offered to pay 
the amount demanded, on being indemnified : that he had no interest 
in the 1952. 4«. lOd., except as trustee thereof, and was still willing 
to pay it over on having a legal discharge or indemnity ; but he was 
advised by counsel that the said trust fund was not liable to be seized 
by virtue of the order, and that, if he directed the bankers to pay it 
over, he might be liable for a breach of trust, and the overseers could 
not give him any legal discharge. 

*Orompton now sho.wed cause on behalf of Longhorn.(a) {A, ^^^^ 
W. Hoggins appeared on behalf of the bankers.) — The powers ^ 
given by stat. 3 & 4 Vict. c. 54, sects. 1, 2, in the case of insane per- 
sons imprisoned for criminal offences, having been exercised in respect 
of Simpson as stated in the aflSdavit, the present application is made 
under sect. 2,(a) which empowers two justices to make orders for the 
maintenance, &c., of any such prisoner, and, if it appear that he has 
property, to direct the overseers to seize the money, or seize and sell 
the goods and chattels, or receive the rents, to the amount requisite 
for payment of the charges. Longhorn has offered payment under an 
indemnity: without it he is unsafe; for he would not be secure, as 

(o) Stat 3 A 4 Vict e. 64, i. 2 (not affected by itat 16 k 17 Vict c. 97 ; see sect 133 of the 
latter itatote), enaott that, <* if it shall appear, upon ioqairj, to th^aid or anj other two jostioes 
of the county," Ac, " where inch person is imprisoned, that an^Ah person is possessed of pro- 
perty, sneh property shall be applied for or towards the ezpe^pincnrred or to be hereafter 
inenrred on his or her behalf, and they shall from time to time, by order under their hands, direct 
the overseen of any parish where any money or securities for money, goods, chattels, lands, or 
tenements of such person shaU be, to seise so much of the said money, or t^ seize and sell so 
maeh of the said goods and chattels, or receive so much of the annual rent of the lands or tene- 
ments of such person, as may be neoessary to pay the charges, if «ny, of inquiring into such 
person's insanity, and of removal, and also the charges of maintenance," Ac, " of any such 
insane person, accounting for the same at the next special petty sessions of the division," Ac, 
''in which such order shall have been made, such charges having been first proved to the satia* 
Cution of sueh justiees, and the amount thereof being set forth in such order." 



80 REGINA t;. LONGHORN. E. T. 1861. 

magistrates now are by 8tatate,(a) in obeying an order of the Court. 
This sum has been deposited in the bank subject to a trust which is 
valid unless it can be shown that Simpson was insane when he executed 
^^.^ the deed. The application to ^take it out would be matter for a 
■^ suit in equity, in which, perhaps, an issue would be directed to 
try the validity of the conveyance. [Patteson, J. — The order of jus- 
tices here seems to contemplate things that can be taken into manual 
possession ; it does not authorize the overseers to sue.] The sheriff, 
under a fi. fa., may, by stat. 1 & 2 Vict. c. 110, s. 12, seize and sue 
upon certain securities ; but this authority does not extend to debts 
generally ; Harrison v. Paynter, 6 M. & W. 387 ;t(i) and it was held not 
applicable to purchase-money deposited by a vendee in the hands of a 
third person in trust for the vendor ; Robinson t;. Peace, 7 Dow). P. C. 
93. But, further, if the overseers have power under the order to take 
these funds, they may seize them without a mandamus. 

The Court then called upon 

Cowling J contri. — The defendant alleges the claim of persons enti- 
tled under a trust deed, which is not valid, according to Jones v. Ash- 
urt, Skinn. 357. There a prisoner, about to be tried for burglary, 
made a bill of sale of his goods, intending them to be a provision for 
his son ; but Holt, G. J., held the bill fraudulent, as made to prevent 
a forfeiture. [Lord Campbell, C. J. — There the party was convicted ; 
here Simpson was acquitted.] The case differs in that respect from 
Jones v. Ashurt ; but the deed is vitiated by the intention. And there 
is evidence here of Simpson's insanity before and shortly after he exe- 
cuted the deed, if not at the time. The parish oflScers cannot be called 
upon to give an indemnity, at least without some special reason. It is 
suggested that there might be a remedy in equity; but Longhorn is 
^j.,^-. not properly a *trustee. [Patteson, J. — I do not understand 

"-' how the justices can authorize the overseers to deal with debts 
owing to the lunatic] The debt is within the words «< money," <« goods" 
and «' chattels" in stat. 8 & 4 Vict. c. 54, s. 2. [Lord Campbell, C. 
J. — You must contend that, if the debt had been for goods sold and 
delivered, or on a bill of exchange, the overseers might have been 
ordered to recover it. Can the justices try the validity of the debt ?] 
Perhaps, if that were doubtful, they could not make the order. [Lord 
Campbell, C. J. — It is a matter of great dispute here, whether Long- 
horn was debtor. P^^SON, J. — As a debt follows the person of the 
debtor, it would seem^^result from the argument that there might be 
an order of this kind upon the overseers .of any parish where he might 
happen to b#. Or, if the alleged debtor had property in different 
parishes, there might be several orders under the statute.] The conse- 
quence from the debt following the person must be admitted. [Pattb- 

(a) 11 A 12 Viot e. 44, e. 5. 

(6) And see Wood v. Wood, 4 Q. B. 897 (B. 0. L. B. toL 45). 



17 ADOLPHOS k ELLIS. N. S. 



BON, J. — Where do you find any words authorizing the overseers to sue 
a debtor of the lunatic ? Lord Campbell, C. J. — That is the point : 
what makes the. debtor liable to such an action?] At least the Court 
may grant a mandamus to try this question. [Lord Campbell, C. J. 
— ^It would be a great hardship on the defendant.] The overseers also 
are under a hardship. Decisions relating to the duty of a sheriff do 
not apply to this case. 

.Lord Campbell, C. J. — The case is not brought within the enact- 
ment relied upon. We cannot grant a mandamus. Whether or not 
there be any other remedy it is unnecessary to say. 
Patteson, J. — The fair construction of the statute is *quite 



against this application. The overseers are to <« seise." How 



[*88 



can they seize a debt ?(a) Rule discharged. 

(a) Coleridge, J., wm absent on Moonnt of iU health; Wightman, J., in the Bail Court; Brio 
J^ at GaUdhall. 



The QUEEN v. The SOUTHAMPTON Dock Company. May 12. 

On appeal against a rate, several points being raised on eaeh side, the Sessions gare Judgment 
for the appellants on some points, and for the respondents on others (the effect of the Judg- 
ment being, npon the whole, in favour of the appellants, by the rate being reduced), subject 
at the instance of the appellants, to a special ease. The respondents, who had resoWed not to 
dispute the judgment of the Sessions, claimed that the points decided against them should be 
inserted in the ease, if brought up, as well as those decided against the appellants. The appel- 
lants brought up the case by certiorari: and this Court confirmed the judgment of the Sessions 
on all the points : Held, that (he respondents were not entitled to their costs under stat 6 G. 
S; e. 19, s. 2. 

On appeal by The Southampton Dock Company against a rate for 
the relief of the poor of the town, &c., of Southampton, the Sessions 
reduced the assessment, and awarded costs to the appellants, subject to 
the opinion of this Court upon a special case : the rate, as amended by 
the Sessions, to be raised or further reduced, amended or confirmed, or 
referred back to the Sessions, as this Court should think fit. Several 
points had been raised by either side upon the appeal, some of which 
the Sessions decided in favour of the appellants, and some for the 
respondents. The respondents, as appeared by the affidavit for the 
appellants, claimed that the points decided in favour of the appellants 
should be stated in the special case, if broug||^ up ; and ultimately all 
the points which had been raised on either side were so stated. It also 
appeared, by the affidavits for the respondents, that the case was pre- 
pared altogether at the instance of the appellants, and not in any way 
of the respondents ; and that the case and the order of Sessions 
♦were brought up by certiorari by the appellants without the pri- p^^- 
vity or sanction of the respondents, who had determined not to ^ 
dispute the judgment of the Sessions. This Court affirmed the judg- 

TOL. XVII. — 10 O 



84 REGINA v. DOCK COMPANY. B. T. 1851. 

ment of the Sessions upon all the point8.(a) The appellants, upon 
bringing up the case by certiorari, had entered into the recognisance 
required by stat. 5 6. 2, c. 19, s. 2: and the respondents, after the 
judgment of this Court, confirming that of the Court below, obtained 
a side bar rule for their costs under the same statute. 

(7. SaunderBy in this term, obtained a rule nisi to set aside this rule. 

Sewell now showed cause. — The respondents are entitled to costs. 
Stat. 5 G. 2, c. 19, s. 2, enacts that the parties prosecuting the cer- 
tiorari shall, by their recognisance, bind themselves, under the penalty 
of 50Z., << to prosecute the same at his or their own costs and charges 
with effect," ^<and to pay the party or parties, in whose favour and for 
whose benefit" the order or judgment of sessions was given, «^ within 
one month after th« said judgment or order shall be confirmed," their 
full costs and charges. The law therefore is that, where the judgment 
of the sessions is confirmed, the party impeaching it is to pay the costs 
of the other ; and that,- where the judgment is reversed, each party 
pays his own costs. Here the judgment has been confirmed ; but the 
appellants are the parties impeaching it; for the affidavits of the 
respondents show that the case was brought up by certiorari without 
their knowledge or sanction, they having previously resolved not to 
*ft^l ^^^^^^^ ^^^ judgment of the Sessions. It is '*'true that the 
^ respondents required the points which had been decided against 
them to be inserted in the special case ; but that request was only con- 
ditional upon the case being brought up at all, it being the appellants, 
and not the respondents, who desired to take that course. [Lord Camp- 
bell, C. J. — Suppose both parties had brought up the case by certio- 
rari : do you contend thft neither would then be liable for costs ?] That 
^Quld be the result. [Lord Campbell, C. J. — If the respondents take 
a part in the arrangement and modification of the special case which is 
sent up, and the judgment of this Court is against them, is it equitable 
that they should have the costs ? Wightman, J. — There was no abso- 
lute necessity for their interference; they might have allowed the 
appellants to bring up only the points made by the. appellants. Lord 
Campbell, C. J. — The points on the opposite sides were quite distinct.] 
The appellants had all the costs below. It was not on their application, 
but on that of the respondents, that the special case was drawn up. 
[Lord Campbell, C. J. — ^The course taken by the respondents has 
increased the amount of^sts very much.] 

C. SaunderSy contri, was stopped by the Court. 

Lord Campbell, C. J. — The rule must be made absolute. The cer- 
tiorari, under the circumstances of the case, must be considered as hav* 
ing been prosecuted by both parties ; and consequently neither is enti- 
tled to costs. 

(a) Beglna o. SoathAmpton Doek Compsnj, 14 Q. B. 587 (B. 0. L. R. toL 68). 



17 ADOLPHUS k ELLIS. N. S, 86 

Fattesok and WiGHTHANy J8.,(a) concurred. 

Bale absolate. 

(a) Coleridge, J.| wm Abeent on aeeonnt of ill health. 



•FINNEY V. BEESLET. May 13. [*86 

Under itat. 1 W. 4, e. 2S, ■. 4, the general role of praotiee fa thai a oommiision to examine wit- 
neeaee in a eaose shall not be granted before iseoe joined. Bot a oommission maj be so 
granted in an extreme ease and where, without 1^ jastioe wonld be defeated, by the exclaaion 
of material evidence. 

Am where the plaintiff in an action of promieee applied for a oommisaion immediately after action 
bronght and before declaration, intending to try at the next aesises ; and the party whom it 
wae proposed to examine was a witness to actual promises, and was to sail in five days for 
South Africa, purposing to remain there eighteen months. 

WiLLES, in this term, on behalf of the defendant, obtained a rule 
nisi to rescind an order made by Wightman, J., on sommonB, that one 
of three barristers named should be at liberty to examine John Gallo- 
way, of Russell Street, Stratford, near Manchester, a witness on behalf 
of the plaintiff in this cause, yiy& voce ; that defendant should be at 
liberty to select the examiner, and to join in the examination ; that the 
depositions should be returned to the Judge at Chambers ; and that 
office copies might be read in evidence at the trial. 

The action was on promises : copy of a writ of summons in the cause 
was served on April 3d, 1851: on the 4th, defendant's agents gave 
notice of being instructed to appear in the cause : on the same day they 
were served with a summons, for the purpose of obtaining an order for 
a commission to examine as above mentioned ; but the hearing unavoid- 
ably stood over. On a second summons the parties were heard, Mon- 
day, April 7th, 1851 ; when it was stated on affidavit, as ground for 
making the order, that Oalloway was a material and necessary witness, 
without whose evidence the plaintiff could not safely proceed to trial ; 
that Galloway was going abroad on April 9th, to reside at Port Natal, 
in South Africa, and therefore would not be able to attend the trial; 
that he had lately returned to England from that place; that he 
<Mntenda to continue to reside at Port Natal aforesaid for about eighteen 
months ensuing:*' and that the plaintiff '^'proposed to examine him ^^^„ 
as to a statement of accounts between hinflkl defendant, which ^ 



proposei 
ii^d 
3d Woe 



defendant in Galloway's presence admitted Woe correct, and promised 
to pay plaintiff the sum of 1611. ITa, 6(2., claimed in this action. For 
the defendant it was objected that the defendant had not appeared to 
the action and was not obliged to do so until the following Thursday, 
which was not denied on the plaintiff's part ; and there had, in fact, at 
that time, been no pleadings or appearance. The learned Judge over- 
ruled the objection, and made the order. An appearance was entered 



87 FINNET v. BEESLET. E T. 1851. 

on April 10th : but issue had not been joined when this application was 
made. 

The attorney for the plaintiff gave notice of the order to the attor- 
ney for the defendant, at Manchester, where both resided, on April 
8th : but the latter attorney declined to appoint an examiner, pro- 
tested against the proceedings, and refused to take part in them. - The 
examination of Galloway was taken at Liverpool in the evening of the 
same day ; and his evidence was material to the plaintiff, who intended 
trying the cause at the Liverpool summer assizes. Galloway sailed • 
from Liverpool for Port. Natal on April 9th. 

To7fdin9(m now showed cause. — The practice has been not to permit 
an examination before issue joined ; but there is no rule of law on the 
subject except the enactment of stat. 1 W. 4, c. 22, s. 4, which does 
not impose this restriction : nor can there be a ground for insisting 
upon it in every possible emergency. It is true that the Court of 
Exchequer, in Mondel t;. Steele, 8 M. & W. 800,t expressed an opinion 
*f^R1 ^^^^^ T^^^t be joined before an '^'examination could be taken 

^ under the statute ; but that case ended in an arrangement, the 
rule for an examination being made absolute on an undertaking not to 
proceed till after issue joined. And it was stated there by Rolfe, B., 
that the practice in Chancery was <« to allow interrogatories to be takea 
the moment a bill is put upon the file." [Lord Campbell, G. J. — 
There a party may have a bill to perpetuate testimony, even when 
there is no suit depending.] The aflSdavits here show ground for 
departing from the ordinary practice, if there be not an inflexible rule. 
[Lord Campbell, C. J. — I should be sorry to find that there was.] 

WilleBj contr^ was called upon by the Court. — There is certainly 
no absdlute authority beyond that derived from the statute. But, for 
a commission to go, the proceedings should be. in such a state that 
perjury could be assigned on the depositions; and that cannot be with- 
out an issue joined, to which the matter sworn would be material. 
[Lord Campbell, C. J. — The question, on indictment for perjury, 
would be, whether the evidence was material at the time of the trial.] 
If the Court refuse a commission until issue is joined, they will sub- 
stantially follow the precedent of Mondel v. Steele ; and, if inconve- 
nience results, it is better that the Legislature should remedy it than 
the Courts give conflicting decisions. [Wightman, J. — Sects. 40, 44, 
of Stat. 13 G. 8, c. 68, d^^t require that issue shall be joined before 
a mandamus is granted IVexamine witnesses in India.] That is so ; 
and it appears that, in Spalding v. Mure, 2 Tidd*s Prac. 814, 9th ed., 
a mandamus was awarded, under sect. 44, before issue joined. But 
^r^q^ this is a '^'proceeding under a different though analogous Act. 

-* [Wiqhtman, J. — ^Your objection, as to perjury, would apply to 
proceedings in Chancery.] Those are at common law. [Lord Camp- 



17 ADOLPHUS k ELLIS. N. 8. 



BMLLy C. J. — The Act, 1 W. 4, c. 22, a. 4, was intended to give us the 
ume jarisdictioD that a Court of Equity has, and imposes no limit as 
to time.] When a bill in Chancery has been filed, there are averments 
to be proved and disproved ; here as yet there are none. The practice 

on this subject, in Courts of law, has been constant. In v, 

Browne, Hardr. 315, a witness, being in ill health, was examined under 
80 order of Court, «« de bene esse, to preserve his testimony, upon a 
bill preferred, and before answer ;'* after answer, he died, not having 
been again examined ; and the Court of Exchequer, being of opinion 
that he might have been examined again after the answer came in 
(though his illness had never ceased), ruled that his deposition could 
not be read on the trial of an ejectment, « because it was taken before 
issue joined in the cause." 

Lord Campbell, C. J. — There is nothing for the Legislature to reo- 
tify. By the Act 1 W. 4, c. 22, they vested in us a general power to 
be exercised with a sound discretion. If we' resorted to them, they 
could do no more than re-enact the present clause. (His Lordship 
here read sect. 4.) No limitation is there given, except that an action 
shall be depending : nor is there any Rule of Court that a commission 
shall not be granted before issue joined. Mr. WUle9 relies upon past 
practice : and it is, undoubtedly, a safe rule that, unless extraordinary 
circumstances occur, practice should be '^'adhered to. But the ^^^^ 
exigency of a particular case may require us to make an exception ^ 
where justice would be defeated unless a commission were at once 
issued. And the practice in Chancery, of allowing iiiterrogatories 
before answer, affords an analogy. The object of the late Act was to 
obviate the necessity of going to the Court of Chancery for a commis- 
sion, and, for that purpose, to give the same benefit as might, inde* 
pendently of the Act, be had there. I do not admit that, on a de))6- 
sition taken as now proposed, perjury could not be assigned. With 
proper averments I think it might. At all events we will not set aside 
the commission. The defendant, if so advised, may dispute the evi- 
dence when adduced on the trial. 

Pattbson, J. — I am of the same opinion : but our decision is not to 
be taken as an authority for saying that, as a matter of course, a com- 
mission to examine witnesses may be granted before issue joined. The 
general rale remains unaltered : a case like this is an exception. 

WiOHTMAN, J.(a) — I thought the case w|| one of necessity, or at 
least of extreme urgency : and there was no express enactment or rule 
against granting a commission under any circumstances, before issue 
joined, though the general rule of practice undoubtedly is that, until 
there ia an issue, it should not be done. 

Lord Campbell, C. J. — ^I agree that the rule hitherto acted upon 

(a) CoUrldgt^ J^ wm abMni on Mooont of m lioalUL 

a2 



90 FINNET V. BEESLET. E. T. 1861. 

^ • 

^g^^ must be considered as the governing role ; *the only exception 
-* being in a case of extreme urgency, and where justice would be 
defeated if the commission were not granted. Rule discharged. 



Sir OSWALD MOSLET, Baronet, v. HIDE and COPE. Jdatf 13. 

By a nuurUge^iettlementy landfl were oonTojed to tnuteea, to the nee, ftfter the hosband's deat^ 
of the wife, Judith, daring her life, and on tnut, upon her death, to eell, and etand possesacd 
of ihe parchase-raoney, to be divided equally among the ehUdren of the marriage on their 
respectively attaining twenty^ne. There were children of Judith's marriage, E. and M. After 
the husband's death, Judith surviring him, and B. and IL having attained twenty-one and 
married, the trustoes sold the lands : 

One of the conditions of sale recited so much of the settlement as is above stated, and that thera 
were children, as above, who had attained twenty-one: and it stipulated "that Meh eAf7<fr«M, 
or the atrignt or tnuieet of nek of them who kav€ aliened or eettM tkeir eetatee and intereete, 
ehtdl, if required, join in the eonveyanee :** ** but no purchaser shaU be at liberty to object to 
the title of the vendors on Ae' gromnd that the taiU i§ taking place in the lifetime of the eaid 
Judith," Notice of any objection by the purchaser to the vendors' title was to be given before 
March 2d. 

Before the sale, E. and H. had settled their respective shares in trust for themselves and their 
husbands during their respective lives, remainder to their issue respectively : and both had 
children underage. 

Held, that, as, the children of B. and M., or the trustees on their behalf, could not, if required, 
join in conveying to a purchaser, the vendors, trustees of Judith, could not make a good title ; 
that the conditions of sale implied that a good title could be so made ; and that the pur- 
chaser was not precluded by the conditions of sale from taking this objection. 

The purchaser, on receiving an abstract of title, gave notice to the vendors by letter, befora 
March 2d, that he objected to the title on the ground that a sale could not be made in Judith's 
lifetime ; and he sent, with the letter, a conveyancer's opinion that a title could not be made 
during Judith's life, because the trustees under the settlemente of B. and M. could not join 
in a conveyance without breach of trust. No other statement of objection was made before 
March 2d : 

Held, that there was a good notice of the objection which vltimate^ prevailedi within the time 
limited. 

Assumpsit for money had and received, and interest, and on an ac- 
count stated. Particalar of demand, for 4922. 16«., being the ^deposit 
paid by plaintiff to defendants on a contract of sale made between 
plaintiff and defendants in January or February, 1849, whereby certain 
^Qgy. lands and premises at Tutbury in '^'Staffordshire were agreed to be 
^ sold and conveyed to plaintiff, and to which lands, &c., defendants 
have failed to show a good tltle.(a) Plea, by each defendant, Non assamp- 
sit. Issue thereon. 

On the trial, before Patteson, J., at the Stafford Spring Assises, 
1851, it appeared that |j^e premises in question were put up for sale by 
auction on January 2d, 1849, under certain condition, and were bought 
in, but were immediately afterwards purchased on behalf of the plain- 
tiff (who paid 4922. 16«. deposit), subject, by an agreement which the 
purchaser signed, to the above conditions of sale. The defendants Hide 
and Cope, the vendors, were trustees under a settlemcfnt made on the 

(a) There was a f^irther parttonlari for which we p. M, post 



17 ADOLPHUS & ELLIS. N. S. »2 

marriage of Rupert Hayne Chawner, sintse deceased, with Judith Hide, 
dated 16th and 17th September, 1816, whereby the premises in ques- 
tion were limited to the use, after R. H. Chawner's decease, of the said 
Judith for life ; remainder to the defendants Hide and Cope and their 
heirs, during the life of Judith, in trust to preserve contingent remain- 
ders ; remainder to the use of Hide and Cope and their heirs, upon 
trust, as soon as convenientlj might be, to sell, and to stand possessed 
of the purchase-money in trust for all and every the children of the 
said marriage, to be (Uvided equally amongst them, and to be payable 
on their attaining twenty-one years of age, as to sons, and, as to daugh- 
ters, on attaining that age, or marriage. 

There were three children of this marriage living at the time of the 
trial, all having attained the age of twenty-one, and two of them, Eliz- 
abeth and Mary, married women, who, before their respective mar- 
riages, ^mortgaged their respective shares in the proceeds of the p^qq 
sale, and, by deeds made in contemplation of the said marriages ^ 
respectively, bearing date 8d June, 1846, and 26th December, 1846, 
settled the residue upon themselves and their respective husbands for 
life, with remainder to their respective issue, &c., as they should re- 
spectively appoint; and, in default of appointment, to them equally. 
There were children living, and under age, of both the last-mentioned 
marriages. 

The 14ch condition of sale appeared on the evidence to have been as 
foUows. 

<< By the settlement made on the marriage of the said Judith Chaw 
ner, then Judith Hide, spinster, with her late husband," &c., << dated,' 
&c., «( the premises, except," &c., <«now stand limited to the use of the 
said Judith C. for life, with remainder to the said Messrs. Hide and 
Cope and their heirs during the life of the said Judith C, in trust to 
preserve contingent remainders, with remainder to the use of the said 
MessrSk H. and C. in trust for sale, and to stand possessed of the pur- 
chase-money in trust for all and every the children of the said mar- 
riage, to be divided equally amongst them, and be payable on their 
attaining the age of twenty-one years. And, there being three such 
children only, all of whom have attained their respective ages of twenty- 
one years, it is stipulated that such children, or the assigns or trustees 
of such of them who have aliened or settled their estates and inte- 
rests, shall, if required, join in the conveyance to the purchasers at the 
purchasers' expense ; but no purchaser shall be at liberty to object to 
the title of the vendors on the ground that the sale is taking place in 
the lifetime of the said Judith Chawner : nor "^shall the vendors p^g. 
be required to enter into any other covenant for title than that ^ 
they have not respectively encumbered the said premises." 

By the 13th condition, an agreement for confirming the sale under 
these conditions was to be prepared and executed by the vendors and 



94 MOSLEY v, HIDE. E. T. 1851. 

purchaser within a given time ; and, in default thereof, either party 
might cause a stamp to be put upon a form of contract which was an- 
nexed to the conditions. The contract was stamped accordingly : but 
an agreement was afterwards prepared (dated February Ist, 1849), and 
executed by the plaintiff; and it embodied, in two of its clauses, the 
fourteenth copdition of sale. It contained also a stipulation : ('That in 
case the said Sir 0. Mosley, or any* person or persons on his behalf, 
shall object to the vendors' title, or require any act, matter, or thing to 
be done, procured, or executed for completion thereof, notice in writing 
of the particular objection or matter required shall be given to the said 
Edward John Blair" (solicitor to the vendors) « on or before the 2d day 
of March next ; and that, in default of such notice, the said Sir O. M. 
and all persons claiming under him shall be considered as having 
accepted the title unconditionally ; and that every objection or requisi- 
tion not taken or made and so communicated in writing within such 
period as aforesaid shall be considered as waived; and that in this re- 
spect time shall be considered as part of the contract." 

An abstract of title was delivered to the plaintiff's attorneys with the 
draft of agreement: and, on March 1st, 1849, they wrote to the de- 
fendants* attorneys : «< We return you this abstract with the opinion of 
Mr. Vincent Smith upon the title, to which we request your attention, 
^q-^ and regret to add that, after a careful perusal of *such opinion, 
^ we feel bound to object to the title on behalf of our client, on the 
ground that a sale cannot be made in Mrs. Chawner's lifetime." The 
opinion referred to was, as to this point, as follows. 

"I think it impoBsible for a purchaser to acquire a marketable title or even a safe 
holding title, uader a sale made in the lifetime of Mrs. Judith Ghawner, the tenant 
for life. According to the trusts of the settlement of the 17th of September, 1816, 
the estate is not to be sold till after Mrs. Chawner's decease : if, therefore, it should 
be sold in her lifetime, and if, at her decease, the estate should from any circumstance 
be increased in value, or the money arising from the sale should, by reason of the 
deficiency or failure of any security on which it may have been invested, or^y reason 
of any breach of trust, or otherwise, become diminished in amount, I think the sale 
undoubtedly might, and in all probability would, be set aside in a Court of equity. 
The question then is, whether, notwithstanding the 14th condition of sale, the pur- 
chaser is compellable to complete his contract ; and I am inclined to think he is not. 
Under that condition the purchaser is entitled to require the trustees of the respec- 
tive settlements of the 3d of June, 1846, and the 26th December, 1846, and also the 
several mortgagees, to join in the conveyance to him ; from which stipulation it was 
fairly to be inferred that their concurrence would sanction or confirm the sale. But, 
unless the trustees are authorised by their respective settlements to consent to a sale 
in Mrs. Chawner's lifetime, their joining in the conveyance would be useless : in 
fact, in the absence of a power or authority for that purpose, it would be a breach of 
trust in them to sanction any such sale ; so that, under the 14th condition, the purchaser 
is entitled to require the vendors to procure certain acts to be done which would be a 
breach of trust in the parties doing them. I think the trustees of the respective 
settlements of 1846, so far from being in a position to sanction the sale in Mrs. 
Chawner's lifetime, would be bound to take such proceedings as might be necessarj 
to prevent any such sale being made, or, if made, to set it aside. At all events the^ 



17 ADOLPHUS k ELLIS. N. 8. 96 

ooald not safely permit the trusteefl of the settlement of 1816 to receive the purchM^ 
monej. I think the trustees of that settlement have themselves been guilty of a 
breach of trust by entering into the present contract ; and I do not think a Court of 
equity would decree a specific performance of if 

The objection, as altimately taken in this case, and specified in a 
farther particular dblivered by the plaintiff, was as follows. 

*'« That the defendants were aftd are unable to convey apd r^Q^ 
assure to the plaintiff a good and marketable title in fee simple to ^ 
the messuage and premises agreed to be conveyed, during the lifetime 
of Judith Ghawner, who, at the date of the contract, was, and still is, 
living. 

"That the children of the marriage between R. H. Chawner and 
Judith Hide were not legally able to join in the conveyance of the said 
property to the plaintiff. 

«< That the assignees and trustees of such of the children of the said 
marriage who have aliened or settled their estates and interests were 
not legally able to join in such conveyance. 

« That, in consequence thereof, the defendants could not and did not 
fulfil their agreement, and were unable to make and convey such a title 
as they had undertaken to give to the plaintiff." 

The objection was urged at the trial, on behalf of the plaintiffl The 
defendants relied on the 14th condition of sale, and contended, further, 
that specific notice of the objection had not been given within the time 
required by the agreement of February 1st, 1849. The learned Judge 
ruled in favour of the plaintiff on both points ; and a verdict was returned 
for him.(a) In this term, Whateley on behalf of Hide, and Keating on 
behalf of Cope, obtained rules nisi for a new'trial, on the ground that 
the jury ought to have been directed to find for the defendants. Gorrall 
V. Cattell, 4 M. & W. 784,t was cited. 

W. J. Alexander^ Peacock^ and Phip%<m now showed cause. — The 
plaintiff ts not precluded from this objection by the 14th condition. He 
does not insist that the sale "^is irregular as taking place in Mrs. ^^q. 
Chawner*s lifetime, but that, in order to carry it out, her children, ^ 
or the assigns or trustees of such of them as have settled their estates 
and interests, ought, if required, to join in the conveyance ; whereas it 
tnrns out that the trustees under the settlements made by Mrs. Chawner's 
daughters Elizabeth and Mary, for the benefit of their children, cannot 
join, the children being under age ; nor can the children themselves, 
the equitable assigns, join. And, that being so, it was not necessary 
that the purchaser should actually call upon the trustees or children to 
do that which they had no power to do. The 14th condition is an 
entire stipulation : no objection is to be taken because Mrs. Chawner is 
living ; but the daughters, and the trustees or assigns under |ny settle- 
ment created by them, are to join in guaranteeing the title, so that the 

(«) A bUl of exoeptions wm teiid«redt but not prooeeded open. 

VOL. xvn. — 11 



97 MOSLEY v. HIDE. E. T. 1861. 

continuance of Mrs. Chawner's life may not create any actual difficulty. 
^If she were not alive, the concurrence of these parties would not be 
required ; the complaint is that, being wanted by reason of her being 
alive, a necessity contemplated at the time of sale, it cannot be had. 
The purchaser, then, is discharged, and entitled ifi recover back his 
deposit. In Gorrall t;. Gattell, 4 M. & W. 784,t there was a distinct 
stipulation that no objection should be made by the purchaser on 
account of a particular deed, supposed to be a forgery, but which, on 
the trial of the cause, was found to be genuine. There the specific 
objection, afterwards taken, was expressly provided against, whether 
the deed should be genuine or not. Here the objection is not the 
particular one which the condition excludes, but is founded upon the 



•'QS] 



entire agreement between the '^'parties. As to the time of taking 
the objection ; the letter of March 1st, 1849, which is within the 
period limited, states, simply, <«that a sale cannot be made in Mrs. 
Chawner's lifetime :" this, of itself, might be insufficient ; but the opinion 
of counsel, forwarded at the same time, discloses the whole ground now 
taken by the plaintiff. 

Whateley^ Keatingy and J, Qray^ contr&. — The defendants do not 
assert that they have made a good title, but that the agreement on their 
part is performed. The stipulation in the 14th condition was intended 
only to limit the chances of objection by precluding the. trustees who 
might join in the conveyance from alleging at a future time that it was 
made during Mrs. Chawner's life. It was not meant that the trustees 
should warrant the title : such a provision would have been nugatory ; 
for, in equity, no good title could be made in Mrs. Ghawnet*s lifetime. 
[Lord Campbell, G. J. — Does not the condition mean. that the trustees 
shall join effectually ?] They are to join only if required, which is at 
the option of the purchaser. [Lord Gampbbll, G. J. — Their joining, 
under these circumstances, would be no safety to him.] That was never 
contemplated. He would be secure against the children of Mrs. Ghaw- 
ner, and their trustees, but could not be secure against the children of 
two of those children. To that extent, but not farther, the vendors 
undertake to give title : the plaintiff might, if he thought proper, take 
the chances of purchasing with such a title. If it was intended that a 
perfectly good title lit law and in equity should be made, or if it had 
been certain that such a title could be made, it would have been idle to 
stipulate against the equitable objection arising from the continuance 
*QQ1 ^^ ^^^^' Ghawner's *life. The trustees could not remove that, 
-' but undertook that it should be obviated as far as could be done 
by other parties joining. [Patteson, J. — The stipulation as to the 
children joining seems to imply that they shall be in a condition to do 
so. Lord /!]Iampbrll, G. J. — That their joining shall be of scone use.] 
The effect of that stipulation, if it were not qualified by the proviso 
against objecting to the sale as made in Mrsi Ghawner's life, would be 



17 ADOLPHUS k IlLLIS. N. S.^ 



a complete warranty.. <'A^'*party may, if he pleases, stipulate for taking 
a very imperfect title ; and^'jliere, the parchaser has consented to take 
one which carries with it somy risk of being involved in an equity suit. 
The argument on the other sidFe ^dUy annuls the 14th condition. But 
for the existence of parties who coald* not join, a good title might have 
been made in Mrs. Chawner's lifetime}' thd existence of such parties is 
the very contingency provided against (and no other can have been 
contemplated) in the stipulation that the continuance of Mrs. Ghawner's 
life shall not be made an objection. Some effec^r'must be given to that 
stipulation ; and it is incumbent on the plaintiff to j^ointout something 
in the condition which may have a countervailing effect; : (.On this point 
Oray cited the language of Lord Brougham, C, in Thbt^^hl^U v. Hall, 
2 CI. & Fin. 22, 86: ^l hold it to be a rule," to ttdecisi^-e the other 
way.") 

Lord Campbell, C. J. — ^I think the ruling of my brother Patteson 
was right. There is no doubt that a purchaser may agree to a bad title, 
or none. But the question is, for what the purchaser stipulated in this 
case. Properly, the sale ought not to have taken place '''till the r^-inA 
death of Mrs. Chawner ; but it was effected in her lifetime ; and *- 
the 14th condition of sale is : <« There being three such children" (of 
the marriage of Rupert Hayne Chawner and Judith Hide), ((all of 
whom have attained their respective ages of twenty-one years," it is 
stipulated that such children, or the assigns or trustees of such of them 
who have aliened or settled their estates and interests, shall, if required, 
join in the conveyance to the purchasers." The question is, what is 
meant by that stipulation. The defendants contend that it is enough 
if the trustees, without having the complete power, agree to execute 
the conveyance. But I think the meaning must be that they shall join, 
and have power to join effectually : not that they shall so join as to 
commit a breach of trust. They have no powejr on behalf of the children 
of Elizabeth and Mary ; and therefore they cannot join in the sense of 
the condition : and I think that is an objection which the plaintiff is 
entitled to take. As to the time at which the objection was taken : I 
think the letter of March 1st, and the opinion, taken together, raised 
it saffiqiently, and, therefore, that it was in time. 

Pactbson, J. — The argument I have heard confirms the opinion I 
entertained at the trial. The trustees under Mrs. Chawner's settlement 
were entitled to sell the property and divide the proceeds, at her death ; 
and they could, then, have made a good title : but, choosing to sell in 
her lifetime, they make known that fact by the conditions of sale. 
They could not but know how the estate stood when they published the 
conditions. By them they disclosed that there were children of the 
marriage of Judith and Rupert Hayne Chawner, but not *that r^iA-i 
those children had married, made a settlement of their interests, '- 
or had children : and then they stipulate that a purchaser shall not 



101 MOSLBY V. Aide. b. t. issi. 

object to the sale as taking pl^ce in the lifcftime-of Jadith Chawner. 
If the condition had made no reference to iai^.o\^er parties than Judith 
and her children, I do not say that th^"pUrcha8er most, not have ran 
the risk of sach a title as the traste§s*oan*bow make : bat it is stipulated 
here that the children of JaditX *i^ or the assigns or trustees of sack 
of them who have aliened or settled their estates and interests, shall, 
if required, join in the conveyaiice :'* that is, that all who may be pre- 
judiced by the sale sl^^ join : which implies that they are in a capacity 
to do so. Whether tlibj^ were so or not was known to the sellers, but 
not to the purcbas'em..' It is true that the stipulation, as now construed, 
may do away^.w^tk- the other part of the condition : but the condition 
is framed .Sy'fiie sellers ; and, if this is the consequence, it is their fault. 
The latter part of the condition^ as construed by the defendants, cannot 
have been intended by the parties ; nor do I see, on that construction, 
what can have been meant by it. I think the whole is tantamount to 
a stipulation that all the parties referred to should join, and were in a 
capacity to do so. 

WiGHTMAN, J.(a) — This appears to me a clear case. The trastees 
had power to sell on Mrs. Chawner's death, but not before : her life 
was an obvious defect in the titlel It was not to be expected that, in 
the face of such an objection, a purchaser would come forward ; and 
*1 021 ^^^^^f^^® ^^^ condition was introduced. It is urged '''that all 
-' objections to the title were to be taken before the 2d of March, 
and that the only objection taken by the specified time was that fronk 
which the purchaser was precluded, namely, that Mrs. Chawner was 
living. But that is not so. In truth the point taken is hardly an 
objection to the title, but rather an insisting on performance of the 
condition, namely that the children, or the assigns or trustees of those 
who had aliened or settled, should join in the conveyance. The clause 
must have been intended (o obviate that defect of title which was evi- 
dent, and must be taken to have implied that the assigns or trustees 
were in a capacity to join. Rule discharged. 

(o) Coleridge, J., wm ibeeni on aeeoa&t of fll lieelth. 



XNP OF EASTEB TEBM. 



CASES 

ABOUED AND DETERMINED 

n 

THE QUEEN'S BENCH 

EXCHEQUER CHAMBER, 

tfrinitij <Krrra anh ^aratton, « 

XIV. AMD XV. VICTORIA. 1861. 



The Jadges who nsuall j sat in Banc in this Term were : . 
Jiord Campbell, C. J. CoLBRiDas, J. 

Pattbson, J. Erlb, J. 



SIEVEWRIQHT v. ARCHIBALD. 

A brolur Mthoiiied by plaintiff to aell 600 toot of Dnnlop't iron, mwle » bwgtlii with defMi4<- 
ani to tell it to him for a price exceeding 102. The broker lent a note to the plaintiff ezpreising 
that he had sold for him 600 tons Dunlop's iron ; and a note to the defendant expressing that 
ha had bought for him 600 tons Scotch iron. Dnnlop's is Scotch iron, hot not the only kind 
of Scotch iron. The broker made no signed entry in his book. After this there was a nego- 
tiation between plaintiff and defendant as to the terms on which the defendant might be let off 
the contract, in which both treated the contract as binding ; but there was nothing to show 
whether they Oonddcred the contract to be for Scotch iron generally, or only for Dunlop's, or 
that either was aware of the variance in the notes. The plaintiff brought an action as on a 
contract to deliver Dnnlop's iron. Non assnmpeit was pleaded ; and at the trial the variance 
between tho notea appeared. The declaration was then amended, so as to make the contract 
be to deliver Scotch iron ; and the jury found that the defendant had ratified the contract con- 
tained in the bought note. Verdict for plaintiff. On motion to enter a verdict for defendant: 

Held, by Urd Campbell, C. J., and Patteson and WIghtman, Js., that the varUnce between tha 
bought and sold notes was material ; and that there was no sufficient mamorandum of a oon- 
traet to satisfy the Statute of Frauds 20 C. 3, c S, s. 17 : 

Held, also, that th^re was no evidence, on which the Jury could a6t, of a ratification of the 



Brie, J., dissenting upon both points. 

Assumpsit for not accepting iron.(a) Plea (among others): Non 
Msnmpeit. Issue thereon. 

*The cause was tried before Lord Campbell, C. J., at the sit- r^i^ni 
tings in London after Michaelmas Term, 1850. The pleadings, '- 

(a) Sat pp. 130, us, post 

H 



104 8IEVEWRIGHT v, ARCHIBALD. T. T. 1861. 

the iDanner in which they were amended, and the points reserved, are 
fally stated in the judgment of Lord Campbell, C. J.(a) 

Watson^ in the ensuing term, obtained a rule Nisi to enter a verdict 
for the defendant pursuant to the leave reserved. 

Bovillj in Easter Term,(&) showed cause ; and Watson and Hawkim 
were heard in support of the rule. The arguments used and cases 
cited will appear sufficiently by the judgments. Our. adv. vult. 

In this term (June 17th), the Court being divided in opinion, the 
learned Juj^ges delivered separate judgments. 

Erlb, J. — In this case it appeared, by the evidence of the broker 
at the trial, that he agreed with the defendant to sell to him 500 tons 
of Dunlop's iron ; that Dunlop's iron was Scotch ; that he delivered to 
the defendant a bought note, in which the thing bought was named 
Scotch iron, and to the plaintiff a sold note, in which the thing sold 
was named Dunlop's iron : and it further appeared that the defendant 
had repeatedly admitted tl\e existence of some contract by requesting 
the plaintiff to release him therefrom upon terms. 
*W\] '^^^ plaintiff had declared for not accepting Dunlop's *iron: 
-* but, on the defendant producing the bought note, so that it was 
in evidence, and objecting that there was no contract because the bought 
and sold notes varied, the plaintiff then contended that th^ defendant 
had ratified the contract expressed in the bought note sent to the de- 
fendant. The declaration was then amended to agree with the bought 
note ; and the jury found their verdict for the plaintiff, and that the 
defendant had ratified the contract alleged in the amended declaration. 
I take this to be the substance of the evidence, as stated more fully in 
the judgment of the Lord Chief Justice. The defendant obtained a 
rule to set aside this verdict for the plaintiff, and enter it for the de- 
fendant, on two grounds : First, he contended that in cases where a 
contract has been made by a broker, and bought and sold notes have 
been delivered, they alone constitute the contract ; that all other evi- 
dence of the contract b excluded ; and that, if they vary, a contract 
is disproved; and that the notes now in question did vary: and, 
secondly, he contended that, if evidence was in such cases admissible, 
there was no evidence here to go to the jury to prove the ratification 
of the contract alleged in the amended declaration. But, after consi- 
dering the argument, it appears to me that he has failed to establish 
either ground. 

With respect to the first ground : I would observe that the question 
of the effect either of an entry in a broker's book signed by him, or 
of the acceptance of bought and sold notes which agree, is not touched 
by the present case. I assume that sufficient parol evidence of a con* 

(a) Poit, p. 130. 

(6) April 16Ui. Before Lord Campbell, C. J., PaMeton, Wlghtmaa and Brie, Ja. 



17 ADOLPHUS & ELLIS. N. S. 106 

tract in the terms of the bought note delivered to the defendant has 
been tendered, and that the point is, Whether such ^idence is inadmis* 
Bible because a sold note was delivered to the plaintiff? in other words, 
^Whether bought and sold notes, without other evidence of in- ^^^ ^^ 
tention, are by presumption of law a contract in writing? I ^ 
think they are not. If bought and sold notes which agree are deli- 
vered, and accepted without objection, such acceptance without objec* 
tion is evidence for the jury of mutual assent to* the terms* of the notes : 
bat the assent is to be inferred by the jury from their acceptance of 
the notes without objection, not from the signature to the writing, 
which would be the proof if they constituted a contract in writing. 
This seems to me to be the effect of the evidence 6f mercantile usage 
relating to bought and sold notes, given in Hawes v, Forster, 1 Moo. 
& Rob. 368, 372, mentioned below ; and this is the ground on which 
the verdict in that case is to be sustained, according to the opinion of 
Parke, B., expressed in Thornton v. Charles, 9 M. & W. 802.t The 
form of the instruments is strong to show that they are not intended 
to constitute a contract in writing, but to give information from the 
'agent to the principal of that which has been done on his behalf: the 
buyer is informed of his purchase, the seller of his sale ; and experience 
shows that they are varied as mercantile convenience may dictate. 
Both may be sent, or one, or neither ; they may both be signed by the 
broker, or one by him, and the other by the party ; the names of both 
contractors may be mentioned, or one may be named and the other 
described ; they may be sent at the time of the contract, or after, or 
one at an interval after the other. No person, acquainted with legal 
consequences, would intend to make a written contract depend on sepa- 
rate instruments, sent at separate times, in various forms, neither party 
having seen both instruments : such a process is contrary to the nature 
of ^contracting, of which the essence is interchange of consent 
at a certain time. The governing principle in respect of con- 
tracts is to give effect to the intention of the parties ; and, where the 
intention to contract is clear, it seems contrary to that principle to 
defeat it because bought and sold notes have been delivered which dis- 
agree. They are theu held to constitute the. contract only for the 
purpose of annuUing^it. 

It seems to me therefore that, upon principle, the mere delivery of 
bought and sold notes does not prove an intention to contract in writing, 
and does not exftude other evidence of the contract in case they dis- 
agree. Before examining the authorities on which this proposition is 
supposed to be founded, I would draw attention to the distinction 
between evidence of a contract, and evidence of a compliance with 
the Statute of Frauds. The question of compliance with the statute 
does not arise until the contract is in proof. In case of a written 
contract the statute has no application. In case of other contracts, 



[*107 



no8] 



107 SIEVEWRIGHT v. ARCHIBALD. T. T. 1861. 

the compliance nuy be proved bj part payment, or part delivery, 
or memorandum m writing of the bargain. Where a memorandom 
in writing is to be proved as a compliance with the statute, it differs 
from a contract in writing, in that it may be made at any time after 
the contract, if before the action commenced; and any number of 
memoranda may be made, all being equally originals ; and it is sufficient 
if signed by one of the parties only or his agent ; and if the terms of 
the bargain can be collected from it, although it be not expressed in 
the usual (orm of an agreement ; Egerton v. Mathews, 6 East, 307. 

I now advert to the authorities usually cited on this *point. 
In Thornton v. Kempster, 5 Taunt. 786 (E. C. L. R. vol. 1), tk') 
bought and sold notes could not be reconciled, and no other evidence 
appears to have been offered of the contract, and the plaintiff did not 
adopt the note delivered to the defendant ; and he was nonsuited. As 
the case stands in the reports, there was no evidence of mutual assent 
to the contract alleged by the plaintiff* The point was not raised 
whether other evidence of the contract was admissible. In Gumming 
V. Roebuck, Holt N. P. C. 172 (E. C. L. R. vol. 8), the statement is^ 
that the bought and sold notes varied ; and Gibbs, C. J., is reported to 
have ruled that, if the broker delivers a different note of the contract 
to each party contracting, there is no valid contract ; and he nonsuited 
the plaintiff. In this case also it does not appear that any other evi- 
dence of the contract, besides the notes, was offered ; and if not, this 
ruling is in the same way irrelevant to the present question. The 
learned Judge is reported to have added that a case, which states the 
entry in the broker's book to be the original contract, has been since 
contradicted. The facts in relation to which this opinion was expressed 
are not given : if it was intended to be unqualified there is authority 
and principle against it. In Heyman v. Neale, 2 Camp. 337, an entry 
was made in the broker's book, and bought and sold notes were de- 
livered, and the defendant returned the bought note, and contended 
that there was no contract till the note delivered was assented to. 
Lord Ellenborough held that neither party could recede from a contract 
after it was entered in the book, that the bought and sold note is not 
sent on approbation nor does it constitute the contract, it is only a copy 
of the entry, *which would be valid althqpgh no bought or sold 
note was sent. In Orant v. Fletcher, 5 B. & G. 436 (£. G. L. 
R. vol. 11), the plaintiff proved a verbal contract of purchase by the 
broker, and, to comply with the statute, gave in evioence an unsigned 
entry in the broker's book, and imperfect bought and sold notes ; and a 
nonsuit was supported, because these imperfect instruments did not con- 
stitute a sufficient memorandum in writing of the bargain. In the judg- 
ment, it is stated that the entry in the broker's book is the original, 
and the bought and sold notes ought to be copies of it, and that a valid 
contract may probably be made by perfect notes signed by the broker 



►109] 



17 ADOLPHUS ft ELLIS. N. S. 109 



and delivered to the parties, although the book be not signed : the Court 
therefore was far from holding the notes, if delivered, to be the sole 
evidence of the contract. In Goom v. Aflnlo, 6 B. ft C. 117 (E. C. L. 
B. vol. 18), the broker had made an unsigned entry in his book, and 
had delivered to the parties signed bought and sold notes; it was 
objected that the entry in the book was the original, and that therefore 
the notes were inadmissible ; and this objection was only overruled after 
argument on a special case. The Court therefore was still far from 
recognising the doctrine that bought and sold notes are the contract 
itself. In Thornton v. Meuz, M. & M. 48 (E. C. L. R. vol. 22), Abbott, 
G. J., states that he used to think the broker's book the proper evidence 
of the contract, but he afterwards changed his opinion, and held, con- 
formably with the rest of the Court, that the copies delivered to the 
parties were the evidence of the contract they had entered into. It is 
obvious that this ruling does not follow from the judgments that had 
lately preceded it ; it avows a late change- of opinion ;^ it was not acted 
on in *the case, so as to nonsuit the plaintLRTs thereon, but the r^^-i^/i 
trial proceeded, and the plaintiffs were, nonsuited on another ^ 
ground ; and therefore there was no opportunity to review the ruling in 
banc : and both the last cases are expressed as if a contract in writing 
was necessary for a contract of sale of chattels. In Hawes v. Forster, 1 
M. ft Rob. 368, the contract, as stated in the bought and sold notes, 
varied from the contract as stated in the broker's book. On the first 
trial the plaintiffs' note only was in evidence and the broker's book was 
excluded. On the second trial, the plaintiffs relied on both the notes, 
with the evidence of some merchants stating that they always looked to 
the bought and sold notes as the contract, and that, if the note was not 
consonant to their direction to the broker, they returned it ; the defend- 
ants relied on the entry in the broker's book : the jury were directed to 
find for the plaintiffs if the bought and sold notes in their opinion con- 
stituted the contract ; and they found for the plaintiffs. This case ought 
not to be taken to establish the genei^l proposition of law, that the 
notes in all cases constitute the contract. The verdict may well be 
supported upon the facts of the case, as the acceptance of the notes 
without objection was evidence for the jury of mutual assent to a con- 
tract upon the terms expressed in those writings, which agreed. This 
view is explained by Parke, B., in Thornton v. Charles, 9 M. ft W. 804, 
807,t ^here he says, speaking of Hawes v. Forster : " The jury found 
that the bought and sold notea were evidence of the contract, but on 
the ground that those documents, having been delivered to each of the- 
parties after signing the entry in the book, constituted evidence of a 



new contract *made between the parties, on the footing of those 



[nil 



notes. That case may be perfectly correct ; but it does not y 
decide, that if the bought and sold notes disagree, or there be a memo- 
randum in the book made according to the intention of the parties, that 
VOL. XVII.— 12 H 2 



Ill 8IEVEWRIGHT v. ARCHIBALD. T. T. 1861. 

memorandum, signed by the broker, would not be good evidence to 
eaxisfy the Statute of Frauds." The same learned Judge expresses 
himself to the same effect in Pitts v. Beckett, 18 M. & W. 743.t It is 
clear also that, if, according to the opinion of the witnesses, there is a 
right to return the note if contrary to instructions, the keeping of the 
note makes it binding, and not the signature. 

These are the principal authorities cited by Mr. Smith on Mercantile 
Law, 452, 4th ed., in support of the principal now discussed : and from 
this review I gather that, in the greater number of the cases, the doctrine, 
that bought and sold notes are the sole evidence of the contract, is not 
recognised, nor was the point decided that oth^r evidence of the con- 
tract and of a compliance with the statute is inadmissible, if bought 
and sold notes have been delivered which disagree. And, if the princi- 
ple is not established by direct authority, the manifest evil resulting 
from it is a strong ground for believing that4t is not founded on law. 

Then, if other evidence of the contract, and of a compliance with the 
statute, was admissible, the second question raised by the defendant 
remains to be considered, namely whether there was sufficient evidence 
to sustain the verdict for the plaintiff. Upon this' point I think the 
jury were warranted in inferring that the substance of the contract was 
as alleged in the amended ^declaration, and as stated in the de* 



*112] 



fondant's note. The broker who made the contract appears to 



have so understood it, as he so expressed it at the time ; the defendant, 
with whom he made it, probably so understood it, as he kept the note 
in that form without objection, and treated for a compromise on the 
assumption that he was bound thereby, and produced it at the trial as 
the contract. The plaintiff might well so understand it ; for, as Don- 
lop's iron was a Scotch iron, the article which he intended to deliver 
was the article which the defendant intended to buy. There is no evi- 
dence that Scotch iron made by Dunlop was better than any other 
Scotch iron : on the contrary, it is probable from the conduct of the 
parties that the mention of Di)nlop's name was an immaterial accident, 
not affecting the substance of the bargain. As, in the case of the pur- 
chase of wheat or other article of usual supply by its known denomina- 
tion, if the dock where it was stored, or the ship in which it was 
brought, was mentioned in one note and omitted in another, the omis- 
sion of the place would I presume be held immaterial, so the omission 
of the manufacturer of Scotch iron in the defendant's note ought to be 
held immaterial if the subject of his purchase was intended to be Scotch 
iron ; and his conduct is good evidence of such intention. If the evi- 
dence was that the defendant had proposed to buy Scotch iron, and 
that the plaintiff had proposed to sell him the article he wanted, namely 
Dunlop's, and the defendant had described his contract to be a purchase 
of Scotch iron in a memorandum made at the time, the jury would infer 
that Scotch iron was of the substance of the contract. The evidence 



17 ADOLPHUS & ELLIS. N. 8. 112 

DOW in the case appears to me to warrant the same conclasion. If the 
sobstance of the contract was as alleged in the defendant's *note, r^^i-ia 
that nqte alone would be a sufficient memorandum of the bargain ^ 
signed by an agent within the statute. The note delivered to the de- 
fendant was held sufficient by Lord Eenyon in Rucker v. Cammeyer, 1 
Esp. N. P. C. 105 : one note only was offered in evidence by the plain- 
tiffs in Powell v. Divett, 15 East, 29 ; and no objection was made on 
that account : one note alone was held by Lord Denman to be sufficient in 
Hawes v. Forster, 1 M. & Rob. 868 : one note, signed by the defend- 
ant, was held sufficient in Rowe v. Osborne, 1 Stark. N. P. C. 140 (E. 
G. L. R. vol. 2), though it varied from the note signed by the plaintiiTs 
broker which had been sent to the defendant. But it is not necessary 
to discuss whether one note alone would ber a sufficient memorandum ; 
for, if the substance of the contract was as is alleged, the notes did not 
substantially vary. As it was held, in Bold v. Rayner, 1 M. & W. 
843,t S- G* ^7^- ^ ^' ^20} ^^^^ several apparent differences in the 
terms of bought and sold notes might be reconciled by evidence of mer- 
cantile usage in respect of those terms, so, where two descriptions are 
used in those instruments of that which, in the intention of the parties, 
may be the same^rticle, I think the apparent discrepancy may be re- 
moved by evidence of such intention, and that, if both notes were essen-* 
tial to the plaintiff's case, both may be reconciled upon this evidence 
and held valid ; they not being inconsistent as was the case in Thornton 
V. Kempster, 5 Taunt. 786 (E. C. L. R. vol. 1). 

If it is further objected, for the defendant, that the question of ratifi^ 
cation was left to the jury instead of asking them what was the sub- 
stance of the contract, it appears to me that the jury intended to find' 
that the 'contract was as alleged in the declaration, and ex- r^-i-iA 
pressed in the bought note : but, if not, this objection would not *- 
warrant the entry of a verdict for the defendant, which is the present 
rale ; if the point can be resorted to at all, it goes to a new trial only. 
For these reasons my opinion is against the defendant on this second 
ground also : and I think his rule ought to be discharged. 

Pattbson, J., after stating that it was unnecessary to recapitulate 
the facts, as he adopted the full statement in the judgment of Lord 
Campbell, 0. J., proceeded as follows. 

The Statute of Frauds, 29 C. 2, c. 8, s. 17, requires that some note 
or memorandum in vrriting of the bargain be made and signed by the 
parties to be charged by such contract, or their agents thereunto law- 
folly authorized. The question is, Whether in this case there was any 
such note or memorandum in writing signed by the defendant or his 
agent ? If there was, I take it to be clearly immaterial whether there 
was any such note or memorandum signed by the plaintiff (see Egerton 
V. Mathews, 6 East, 807, where the memorandum was signed by the 
defendants themselves, not by a broker or agent, and none was signed 



114 8IEVEWRIGHT v. ARCHIBALD. T. T. 1851. 

by the plaintiff, yet it was held that the statute was satisfied) ; for I 
consider that the meraorandam need not be the contract itself, but that 
a contract may be made without writing ; and, if a memorandum in 
writing be afterwards made, embodying that contract, and be signed by 
one of the parties or his agent, he being the party to be charged thereby, 
the statute is satisfied. StiU it is plain that, if the original contrtet 
was itself in writing signed by both parties, that would be the 
^^ ^ .^ binding ^instrument, and no subsequent memorandum signed by 

^ one party could have any effect. In this case, the contract was 
made by a broker acting for both parties ; but such contract was not 
in writing signed by him or them. If there be any writing to satisfy 
the statute, it must be some subsequent memorandum in writing signed 
by the defendant or his agent. There are subsequent memoranda in 
writing signed by the broker, namely the bought an3 sold notes. 
Which of these, if either, is the memorandum in writing signed by the 
defendant or his agent ? The bought note is delivered to the buyer, 
the defendant; the sold note to the seller, the plaintiff; each of them 
in the language used purports to be a representation, by the broker to 
the person to whom it is delivered, of what he, the broker, has done as 
agent for that person. Surely the bought note del^ered to the buyer 
cannot be said to be the memorandum of the contract signed by the 
buyer's agent in order that he may be bound thereby ; for then it would 
have been delivered to the seller, and not to the buyer ; and vice vers£ as to 
the sold note. Can then the sold note delivered to the seller be treated as 
the memorandum signed by the agent of the buyer, and binding him the 
buyer thereby ? The very language of it shows that it cannot. In the city 
of London, where this contract was made, the broker is bound to enter in 
his book and sign al]*contracts made by him : and, if the broker had made 
such signed entry, I cannot doubt, notwithstanding the cases and dicta 
apparently to the contrary, that such memorandum would be the binding 
contract on both parties. In the case of Hawes v. Forster, 1 M. & Rob. 
*l'i(\'\ ^^^' there was such a ^memorandum signed in the broker's book; 

•^ there were also bought and sold notes, tallying with each other, 
but varying from the book. On the first trial of that case. Lord Den- 
man held that the bought note, produced by the buyer (the plaintiff), 
was sufficient, and was the proper evidence of the contract, and not the 
book, and that no notice to produce the sold note need be given to the 
defendant. The Court, on motion, granted a new trial, holding that 
this evidence was not the proper evidence of the contract, unless there 
was a custom of trade in London that the bought and sold notes, and 
not the signed broker's book, were the contract, and considering that 
such custom had not been sufficiently inquired into. The case is so ex- 
plained by Parke, B., in Thornton v. Charles, 9 M. & W. 802,t and 
again in Pitts v. Beckett, 18 M. & W. 743, 746 ;t and my own note of 
the case (I having been a member of the Court which granted the new 



17 ADOLPHUS & ELLIS. N. B. 11« 

trial(a)) 10 in entire eonformitj with that explanation. On the new 
trial, the jury found the custom that the bought and sold notes consti- 
tated the contract and not the broker's book : a bill of exceptions was 
tendered ; but the defendant did not persist, and submitted to the ver* 
diet. Possibly, if he had, it might have been held that the bought and 
Bold notes, acquiesced in, constituted a new contract ; but that they 
coald erer be treated under such circumstances as the original contract 
seems to me impossible. 

^However, in the present case, there was no signed memoran- r^^^i^ 
dom in the broker's book : therefore the bought and sold notes ^ 
together, or one of them separately, must be the memorandum in writ- 
ing signed by the defendant's agent, or there is none at all, and the 
Btatate will not be satisfied. 

If the bought and sold notes together be the memorandum, and they 
differ materially, it is plain that there is no memorandum : the Court 
cannot possibly say, nor can a jury say, which of them is to prevail 
oyer the other ; read together they are inconsistent, assuming the vari- 
ance between them to be material : and, if one prevails over the other, 
that one will be the memorandum, and not the two together. 
^ If, on the other hand, one only of these notes is to be considered as 
the memorandum in writing signed by the defendant's agent and bind- 
ing the defendant, which of them is to be so considered, the bought note 
delivered to the defendant himself, or the sold note delivered to the 
plaintiff? I have already stated that I cannot think that either of 
them by itself can be so treated. In no one of the oases has the Court, 
or a Judge at Nisi Prius, held that it could : all that Lord Denman held 
in Hawes v. Forster, 1 M. & Rob. 868, on the first trial, was that proof 
of one was sufficient without notice to produce the other, thereby hold- 
ing only that the other must be taken to correspond with that pro- 
duced, until the opposite party produced the other and showed the 
variance. But on the second trial notice to produce the other was 
given, and it was produced, and the two corresponded. In Goom v. 
Aflalo, 6 B. & C. 117 (E. C. L. B. vol. 13), there was no variance at 
til; and the only question was whether, as there was an unsigned 
^memorandum in the broker's book, the bought and sold notes r^^io 
coald be treated as a memorandum; and the Court held that ^ 
they could. All three corresponded in that case. 

If this were res integr^ I am strongly dbposed to say that I should 
hold the bought and sold notes together not to be a memorandum to 
satisfy the Statute of Frauds ; but I consider that point to be too well 

(«) Th« ease wu argued, befort DeniBMi, C. J., LitUedale, Parke, ud Patteeon, Ji., on May 
Mth Md Jane 3d, 1833, bj Sir Jamee Scarlett, D. Pollock, and R. Gumey, for the plaintifb, and 
Sir John Campbell, Solidtor-Qeneral, and Blaokbnme, for the defendante. Denman, 0. J^ 
delirered jnd^nent on June ISth. Vo deeialoA baring beea proaonneed en the question of law, 
ike eue was not reported. 



118 SIEVEWRIGHT v. ARCHIBALD. T. T. 1861. 

settled to admit of discossion ; yet there is no case in which they have 
varied, in which the Court has upheld the contract ; plainly showing 
that the two together have been considered to be the memorandum 
binding both parties : the reason of which is to my mind, I confess, 
quite unsatisfactory ; but I yield to authority. 

I do not go through and examine all the cases on this subject : they 
are collected in the last edition of Smith's Mercantile Law by Mr. 
Dowdeswell ; and they show that it has invariably been held that, where 
the bought jind sold notes are resorted to ^ the contract, or as the 
memorandum of the contract, and they vary in any material point, there 
is no writing to satisfy the statute. 

It seems to me, therefore, that the only question to be determined in 
this case is. Do the bought and sold notes differ in any material point ? 
Now the one is « Dunlop's Scotch iron," the other « Scotch iron" gen- 
erally : the one would be complied with by delivery of Scotch iron of 
any person's manufacture, possibly greatly inferior to that of Messrs. 
Dunlop : the other ties the parties down to Dunlop's ; possibly again 
that may be inferior to some other Scotch iron. How is it possible to 
read the two notes together, and say that they mean the same thing, or 
to say that, if you incorporate the one note with the other, that which 
specifies Dunlop's iron will not immediately prevail over that wbictf 
^-i-iqn does not? I cannot but *think that they are as much at vari- 
•^ ance as the bought and sold notes in Thornton v. Kempster, 5 
Taunt. 786 (E. C. L. R. vol. 1), where the one was «'Riga" and the other 
<« Petersburg'* hemp, and where the Court of Common Pleas held there 
was no contract, independent even of the Statute of Frauds. The 
broker indeed stated in his evidence that he made the original contract 
verbally for Dunlop's Scotch iron ; but how can that evidence make the 
bought note, delivered to the defendant for Scotch iron generally, to be 
a memorandum signed by the defendant's agent binding the defend- 
ant ? The question is, not whether either of the notes corresponds with 
the contract originally made by word of mouth, but whether either of 
the notes, separately, per se, be a signed memorandum binding upon 
either party. 

Upon the whole therefore, however much I may regret that such an 
objection should prevail, I feel bound to say that in my opinion there 
was no evidence in this case of any contract binding on the defendant. 

Lord Campbell, C. J. — I regret to say that the view which I take 
of the law in this case compels me to come to the conclusion that the 
defendant is entitled to our judgment, although the merits are entirely 
against him ; although, believing that he had broken his contract, he 
could only have defended the action in the hope of mitigating the 
damages ; and although he was not aware of the objection on which he 
now relies, till within a few days before the trial. But it appears to 



17 ADOLPHUS^ft BLLIS. N. 8. 119 

me that we cannot refuse giving effect to this objection without r^fioA 
^disregarding the Statute of Frauds, without overturning deciled ^ 
cases, and without danger of introducing uncertainty and confusion into 
the rales for enforcing mercantile contracts of buying and selling. 

The plaintiff in his declaration set out the following written docu- 
ment, stated to be a (< sold note" of certain goods agreed to be pur- 
chased from him by the defendant. 
<(26 Lombart Street, London, Febfuary 26th, 1849. 
« Sold Charles Dickson Archibald, Esq., 48 Upper Harley Street, 
for Messrs. Sievewright, Watson & Co., Glasgow, 500 tons Messrs. 
Dnnlop, Wilson & Co.'s pig iron, S-Sths No. 1 and 2-5ths No. 3, at 52 
shillings per ton, free on board at Troon, payment cash within one 
month from this date against orders of delivery.'* This professed to be 
signed by c^Wm. Richardson, broker." 

The declaration in the usual form aVerred that the iron was duly 
tendered to the defendant, but that he refused to accept or to pay for 
it. The only material plea was Non assumpsit. William Miller, being 
called as a witness, swore as follows. *< I am a metal broker in the 
City : plaintiff carries on business at Glasgow under the firm of Sieve- 
^wright, Watson & Co. I received instruction from him to sell 500 tons 
of Danlop, Wilson & Co.'s pig iron. I sold it to the defendant. I saw 
the defendant in London ; he gave me a verbal authority to make the 
purchase for him. I agreed with him that he was to be the purchaser 
of 500 tons of Dunlop, Wilson & Co/s iron. The name of Sievewright, 
Watson & Co. was mentioned as the sellers. On the 26th of February 
I wrote a contract and sent it to the defendant in a letter." (The 
bought note being called for, it was ^produced by the defendant; r^^n-i 
and it corresponded with the sold note set out in the declara- ^ 
tion, except that, instead of (^ 500 tons Messrs. Dunlop, Wilson & Co.'s 
pig iron," it stated ««500 tons of Scotch pig iron." The bought note 
being read, the witness continued) " This was enclosed in a letter of 
26th February, and sent to the defendant in Upper Harley Street. I 
sent to the plaintiff the same day a sold note" (a copy of it was ad- 
mitted and read as set out in the declaration). (« Dunlop, Wilson & Co. 
are manufacturers of iron in Scotland ; and their iron is Scotch iron." 
The defendant's counsel insisted that there was no binding contract 
between the parties, there being a material variance between the bought 
and sold notes; for, according to the bought note, the seller would 
perform his obligation by tendering 500 tons of pig iron made by any 
manufacturer in any part of Scotland, whereas by the sold note the 
buyer might demand 500 tons of pig iron made by Dnnlop, Wilson k 
Co. ; which might be of a peculiarly good quality and of superior repu- 
tation in the market. I intimated an opinion that the variance was 
material, and that, as there was no entry in the broker's book signed 



121 8IEVEWRIGHT v. ARCHIBALD. T. T. 1851. 

bj him, and the plaintiff had proposed to prove the contract by the 
bought and sold notes, the variance irt^s fatal. The plaintiff's counsel 
then said that he had clear evidence to prove that the defendant had 
subsequently ratified the contract ; and objection being made that he 
could not have ratified the contract as set out in the declaration, I 
permitted the declaration to be amended according to the terms of the 
bought note. 
41-1 991 Miller, the broker, being recalled, after stating that he *had 

*'"'-' the delivery orders for the 600 tons of iron ready to be banded 
over to the defendant on the 26th of March, said : << I saw the defend- 
ant about the end of March. On the 4th of April 'he agreed that I 
should propose to the plaintiff to take a bill at four months, and the 
delivery orders to be lodged as a security at the Union Bank. The 
price of iron had then fallen 5s. a ton. Before the 29th of March, the 
defendant had given me unlimited authority to get the transaction set- 
tled as I thought fit." 

There were read a letter from the defendant to Bichardson of 5th 
April, saying : «« You must manage the iron speculation as you think 
fit ;" a letter written by Richardson to the plaintiff, saying that " Mr. 
Archibald agreed to give a bill at four months ;" the plaintiff's answer 
refusing to take a bill at four months, but offering to take one at three 
months ; another letter written about the same time by the defendant 
to Richardson, saying: («I hope you will conduct it to a successful 
issue;" and further letters between the parties, continuing the nego- 
tiation till 27th October, 1849, when the defendant denied his liability. 
I left the question to the jury, Whether the defendant bad ratified the 
contract sent to him, contained in the bought note 7 The jury found 
that he had ; whereupon a verdict was entered for the plaintiff for 12&L 
damages, with liberty for the defendant to move to enter the verdict for 
bim if the Court should be of opinion that there was not evidence to 
prove the declaration as amended. 

Having heard the rule obtained for this purpose learnedly argued, I 
do not think that there was any suflBcient evidence of ratification. No- 
thing having such a tendency was done by the defendant before the 
*19qi ^^^^ ^^ March, the May on which he ought to have performed 
-^ the contract and on which he broke it. What constituted the 
ratification ? And what date is to be given to it ? There never waa 
any reference by the defendant to the terms of the bought note more 
than of the sold note. The variance between them was not known to him 
till after the action was brought. Nor was there ever any assent by the 
plaintiff to accede to the terms of the bought note, whereby he would 
have become bound to deliver Dunlop, Wilson & (Jo.'s pig iron. The 
sold note, containing different terms, instead of being discarded by the 
plaintiff, was actually declared on by him, and was set up by him aa 



17 ADOLPHUS k ELLIS. N. S. 128 

the true contract till the declaration was amended. The plaintiff like- 
wise sought to recover under a count for goods bargained and sold : but 
this could not avail him ; for the defendant never accepted the goods ; 
and the contract was not for the sale of anj specific goods, the property 
in which could be considered as transferred to him. Recurring to the ' 
special count, the plaintiff attempted to support it by the parol agree* 
ment, alleged to have been entered into between the broker and the 
defendant, using the bought note as a memorandum of the agreement 
to satisfy the Statute of Frauds. t 

In the first place, there seems a difficulty in setting up any parol 
agreement where the parties intended that there should be, and under- 
stood that there was, a written agreement : what passed between the 
defendant and the broker previous to the 26th of February seems to 
me to only amount to an authority from the plaintiff to the broker to 
enter into the contract : and Miller himself says : «< On the 26th of 
FebrvLtkT J I wrote a contract and *sent it to the defendant. I r^^oi 
sent a sold note the same day to the plaintiff." Again, the ^ 
memorandum, under the 17th section of the Statute of Frauds, must 
be signed by the party to be charged, or his agent. But, assuming 
that the parol agreement was the contract, and that, when Miller wrote 
the bought note, it was only to tell his principal what he had done, 
there is a difficulty in saying that, being functus officio as far as making 
the bargain was concerned, he had any authority to sign the memo- 
randum as the defendant's agent, and thereby to charge him. But, if 
be had, can this be said to be a true memorandum of the agreement ? 
We are here again met by the objection of the variancCj which is as 
strong between the parol agreement and the bought note as between 
the bought note and the sold note. If the bought note can be con- 
sidered a memorandum of the parol agreement, so may the sold note ;. 
and which of them is to, prevail? It seems to me, therefore, that we 
get back to the same point at which we were when the variance was 
first objected, and the declaration was amended. I by no means say 
that where there are bought and sold notes they must necessarily be 
the only evidence of the contract : circumstances may be imagined in 
which they might be used as a memorandum of a parol agreement. 
Where there has been an entry of the contract by the broker in his 
book signed by him, I should hold without hesitation, notwithstanding 
some dicta, and a supposed ruling of Lord Tenterden in Thornton tr. 
Meox, M. k M. 43 (E. C. L. R. vol. 22), to the contrary, that thia^ 
entry is the binding contract between the parties, and that a 
^mistake made by him, when sending them a copy of it in the 
shape of a bought or sold note, would not affect its validity. Being 
authorized by the one to sell, and the other to buy, in the terms of 
the contract, when he has reduced it into writing and signed it as their 

VOL. XVII.— 13 I 



[*125 



126 81EVEWRIGHT v. ARCHIBALD. T; T. 1851. 

common agent, it binds them both, according to the Statute of Frauds, 
as if both had signed it with their own hands ; the duty of the broker 
requires him to do so ; and, till recent times, this duty was scrupulously 
performed by every broker. What are called the bought and sold 
notes were sent by him to his principals by way of information that he 
had acted upon their instructions, but not as the actual contract which 
was to be binding upon them. This clearly appears from the practice 
still followed of sending the bought note to the buyer, and the sold 
note to the seller ; whereas, if these notes had been meant to consti- 
tute the contract, the bought note would be put into the hands of the 
seller, and the sold note into the hands of the buyct, that each might 
have the engagement of the other party and not his own. But the 
broker, to save himself trouble, now omits to enter and sign any con- 
tract in his book, and still sends the bought and sold notes as before. 
If these agree, they are held to constitute a binding contract ; if there 
be any material variance between them, they are both nullities, and 
there is no binding contract. This last proposition, though combated 
by the plaintiff's counsel, has been laid down and acted upon in such 
a long series of cases that I could not venture to contravene it, if I 
did not assent to it ; but, where there is no evidence of the contract 
*19f)1 ^^^^^^ ^7 ^^^ bought and sold notes sent by the broker *to the 
^ parties, I do not see how there can be a binding contract unless 
they substantially agree ; for contracting parties must consent to the 
same terms ; and where the terms in the two notes differ there can be no 
reason why faith should be given to the one more than the other. This 
is certainly a most inconvenient mode of carrying on commercial trans- 
actions; from the carelessness of brokers and their clerks mistakes 
not nnfrequently arise, of which unconscientious men take advantage ; 
and no buyer or seller can be safe unless he sees the sold or bought 
note as well as his own ; a precaution which the course of business does 
not permit to be taken. But these inconveniences can only be remedied 
by the Legislature enforcing upon the broker the faithful performance 
of his duty in entering and signing the contract in his book. 

In the present case, there being a material variance between the 
bought and sold note, they do not constitute a binding contract ; there 
is no entry in the broker's book signed by him ; and if there were s 
parol agreement, there being jio sufficient memorandum of it in writing, 
nor any part acceptance or part payment, the Statute of Frauds has 
not been complied with; and I agree with my brother Patteson in 
thinking that the defendant is entitled to the verdict. 

My brother Wightman, who heard the argument, but is now engaged 
elsewhere in the discharge of a public duty, has authorized me to saj 
that he has read this judgment and that he entirely concurs in it. 
But, the Court being divided, instead of making the rule absolute to 



17 ADOLPHUS & ELLIS. N. 8. 120 

enter the verdict for the defendaDt, we think that a nonsuit shonld be 
entered, so that the plaintiff may *haye the opportunity to bring p^^ ^. 
a fresh action, and by a special verdict, or a bill of exceptions, *- 
to take the opinion of a Court of error on his rights. 

Rule absolute to enter a nonsuit. (a) 

(a) Reported by C. Blaekbnrn, Bsq. See m to inspection of the broker's book, Browning e. 
Aylwin, 7 B. 4 G. 304 (B. G. L. R. toI. 14). 

■■ * - . ' ' ■ - ■' 

The form of the memorandum of the without having recourse to parol proof : 
bargain is not material ; but it must Bailey v. Ogden, 3 Johns. 399 ; Ide v. 
state the contract ^th reasonable cer- Stanton, 15 YermoDt, 685 ; Adams v. 
taintj, so that the substance of it can M'Millan, 7 Porter, 73 ; Shaw tr. Fin- 
be understood from the writing itself; nej, 13 Metcalf, 453. 



CORT and GEE v. The AMBERGATE, NOTTINGHAM and BOS- 
TON and EASTERN JUNCTION Railway Company. May 27. 

Ob » eontraet for the nuuia&etaring and supply of goods from time to time, to be paid for after 
d«lirery, if the .pnrehaser, having aeeepted and paid for a portion of the goods, giToi 
nofeiee to the Tender not to mannfaetnre any more as the pnrohaser has no oocasion for them 
and will not accept or pay for them, the Tendor having been desirous and able to complete the 
supply, saeh vendor may, without manufaotaring and tendering the rest of the goodo, maintain 
an aetion against the purchaser for breaeh of the contract 

And proof of such notice by the purchaser will entitle the plaintiff to recover, on a count 
aUeging that he was ready and willing to perform the contract, and that defendant refused 
to accept the residue of the goods, and fr^vMtUd and di9ekarged plaintiff from supplying them. 
mad from further executing the contract. 

Saeh notice is % prevention, though there be no other act of obstruction. 

And it is a diatkarge, though given by a corporation without writing under seal, if it be given 
bj their agent, appearing by the evidence to have acted with their authority, and to h»vf» 
represented them, in the transactionB with the vendor. 

Where, by the terms of su^h a contract, the goods were to be delivered at stated periods, but 
they were not aU delivered at the respective times, the purchasers not countermanding them, 
bnt requesting, firom time to time, that the supply might be delayed, and finally the purchasers 
refased to accept any more : Held that damages might be given for the whole quantity 
remaining on hand, though consisting in part of quantities which, without being actually 
oonntermaaded, had, by desire of the purohaten^ been kept back at the times appointed for 
delivery. And that the jury were properly directed to give such damages as would leave the 
pUintiffi in the same situation as if the defendantf had fulfilled their contract 

• 

. Casb. The declaration stated that, on 14th December, 1846, defend- 
»nts, then being about conetrncting the above-named Railway, required 
in that behalf, and advertised for, certain railway chairs to be supplied 
to them according to a certain specification then made and published 
by defendants, and containing and stating* therein, &c. : The specifica- 
tion was then set *forth, describing the required make, weight. 



and composition of the chairs, and that «< the quantity of chairs 



[♦128 



required was to be 900|^ons of joint and 8000 tons of intermediate 
chairs, and which were to be delivered at such places and in such pro- 
portions as hereinafter described ; to wit, to be delivered out of barges 



128 CORT t. AMBERGATB, Ac., RAILWAY CO. T. T. 1851. 

and placed upon a wharf at Radoliffe upon Trent/* &c. (other places 
of delivery for various quantities were then stated); «un the month of 
February, A. D. 1847, 60 tons at the Grantham Canal Wharf," &c. 
(naming quantities and places,(a) ) *< in the month of March in the year 
aforesaid," &c. : the specification, as recited, then went on to require 
further deliveries at places and in quantities named, in April, and from 
thence monthly till November, 1847, inclusive, and again from January 
to May, 1848, inclusive. The tender was to state the price per ton ; 
payments to be made by the directors of the Company one month after 
delivery, on production of a certificate from the person appointed by 
the Company to receive and inspect the chairs that the contract (for 
the portion) had been duly performed : the engineer to «< have full power 
to alter the deliveries in any way or proportion to the different places 
before specified, by sending information to the contractor from time to 
time of the manner in which such deliveries were to be made :"(&) the 
contractor to be paid according to the prices set forth in his tender. 
The declaration then averred that plaintiffs, having notice of the pre- 
♦12Q1 °^^^^^* ^^^ thereupon afterwards, viz., on, *&c., propose to defend- 
^ ants to supply them with 8900 tons of ca/st iron chairs manu- 
factured from strong mixed iron, subject to the conditions and stipulations 
set forth in the said specification, and in such proportion of joint chairs 
to intermediate or single chairs as described therein as aforesaid, and 
also to deliver the same at such places and in such quantities as stated 
and described as aforesaid, free from every other charge, and at the 
rate, &c. (specifying the rates) : And thereupon afterwards, viz., on 28th 
December, 1846, by a certain contract or memorandum of agreement 
then made between plaintiffs of the one part and defendants of the 
other part, and then sealed with the common seal of the defendants 
and delivered so sealed as aforesaid to the plaintiffs, ;ind which, &c. 
(profert), it was agreed by and between plaintiffs and defendants that 
plaintiffs should and would execute and perform the said proposal accord- 
ing to the conditions and stipulations therein set forth and referred to 
as aforesaid, and subject to the said specification. And defendants did 
thereby agree to pay plaintiffs for the said chairs after the rate and in 
manner above mentioned. Avarment that plaintiffs afterwards, vis., on, 
&c., and on divers other days, &c., did, in pursuance and part perform- 
ance of the said contract on their part, deliver to defendants, and 
defendants did accept and receive of and from plaintiffs, 1787 tons of 
such chains as aforesaid: and, although one month from the said 
respective deliveries of the 'said chairs had respectively elapsed before 
the commencement of this suit, and plaintiffs afterwards, and after the 

(a) The qusotiUei were to bt from 100 to 356 ton* iii^b<» wbole, per month : placM of 
deliverj, Grantham Canal Wharf, Bottosford Wharf, Radolile Wharf, High Bridge Wharf, and 
Boston. 

(6) Theee wonU were taken neaKy verbatim from the ipeeiiealion. 



[♦180 



17 ADOLPHUS & ELLIS. N. 8. 12» 

expiration of one n^)nt& as aforesaid, and before the commencement of 
this suit, viz., &c., ^produced such written certificates as afore- 
Baid to the defendants in respect of the quantities of chairs so 
delivered as aforesaid, nevertheless defendants have not paid, &c., and 
a large sum, viz., 12,1002., is due and unpaid from them to plaintiffs 
for and in respect of the said chairs so delivered, &c. 

And plaintiffs further say that, although they were always, from the 

time of the mali^g of the said contract until such refusal and wrongful 

discharge by defendants as hereinafter mentioned, and thence hitherto, 

ready and willing to execute and perform the said proposal according 

to the conditions and stipulations in that behalf aforesaid, and subject 

to the said specification, and to perform and fulfil the said contract in 

all things on their part and behalf to be performed and fulfilled, whereof, 

&c. (notice to' defendants), and although defendants, in pursuance and 

part performance of the said contract on their part, have accepted and 

received of and from plaintiffs a certain quantity of the said chairs, to 

wit, 1787 tons thereof, and although the time so limited and appointed 

for the execution arid performance of the said contract by plaintiffs as 

aforesaid hath long since elapsed, nevertheless defendants afterwards, 

to wit, during the time so limited and appointed for the execution and 

performance of the said contract by plaintiffs as aforesaid, to wit, the 

31st January, 1848, wrongfully and injuriously and wholly refused, and 

have thence hitherto wholly refused, to accept or receive of or from 

plaintiffs the residue of the said chairat so agreed to be supplied to and 

received by defendants as aforesaid, or any part thereof, according to 

the form and effect of the said contract or otherwise howsoever, and 

then, and have thence hitherto wholly and wrongfully prevented 

*and discharged plaintiffs from supplying the said residue, and r^-to-i 

from the further execution and performance of the said contract ^ 

by them the plaintiffs. Whereby plaintiffs have lost all the profits, &c., 

and have been put to costs in providing, &c., for complete execution of 

the contract, and were obliged to discharge certain persons (named) 

from contracts which the plaintiffs had entered into with them for the 

BQppIy of iron to be used by plaintiffs in making the said chairs, and 

to pay them compensation. 

Plea 1. After oyer of the specification and agreement (the material 
parts of which appear sufficiently by the declaration) : As to the first 
breach, except so far as the same relates to 159Z., parcel, &c. ; payment 
by defendants to plaintiffs, and acceptance by them in full satisfaction, 
tc. : verification. Plea 2. As to the 159Z., payment into Court of that 
sum : which the plaintiffs accepted, and gave a written admission that 
it covered the balance due^or chairs actually delivered. 

Plea 8. As to so much of the said declaration as alleges that plain- 
tiffs were ready and willing to execute and perform the said proposal 
sccording to the conditions and stipulations in that behalf aforesaid, 

I2 



131 CORT V. AMBERGATE, &c., RAILWAY CO. T. T. 1851 

and Bobject to the said specification, defendants Say that plaintifis wer« 
not ready and willing to execute and perform the said proposal accord- 
ing to the said conditions and stipulations and subject to the said spe- 
cification, in manner and form, &c. Conclusion to the country. Issue 
thereon. 

Plea 4. As to so much of the declaration as charges defendants with 
having, during the time limited and appointed for the execution and 
performance of the said contract by the plaintifis, refund to accept or 
*1 ^91 ^®^^^^® ^^^ ^^^^ residue of the said chairs, and prevented and 
^•^ ^discharged the plaintifis from supplying the said residue, and 
from the further execution and performance of the said contract by 
them the plaintiffs, defdndants say that they did not during the said 
last-mentioned time refus^ to accept or receive the said residue, nor did 
they prevent or discharge the plaintiffs from supplying the said residue 
and from the further execution and performance of the said contract 
by the plaintiffs in manner and form, &c. Conclusion to the country. 
Issue thereon. 

Replication to plea 1. That defendants did not pay, &c., nor did 
plaintiffs accept, &c., in manner and form, &c. Conclusion to the 
country. Issue thereon. 

On the trial, before Coleridge, J., at the Nottingham Spring Assizes, 
1851, it appeared that the plaintiffs, after the agreement declared upon, 
bought premises, made contracts for iron, and, at considerable expense, 
and by incurring various liabilities, put themselves in a situation to 
supply the 8900 tons of iron chairs. The supply was begun : but in 
September, 1847, when the plaintiffs' book-keeper. Smith, called upon 
the Company's eikgineer for money, the engineer, who used to give 
directions on their behalf as to the delivery of the chairs, requested 
that the plaintiffs would go on very slowly with the supply, as he did 
not know how to do, the calls not being paid, and he did not know how 
far the line would be carried out. Part of the line for which the chairs 
had been ordered (ending at Boston) was ultimately abandoned. In 
January, 1848, the engineer stopped the supply for a time, saying he 
would let the plaintiffs know when more chairs were wanted. The 
plaintiffs' establishment for manufacturing the chairs was kept up dur- 
ing the suspension, which continued till August. Then the engineer 
*'[ ^^1 ^^^^ ^^^ Company could *take a few more, but plaintiffs were to 
-* go on slowly. They did so till February, 1849, and were then 
again stopped till April, when the engineer desired to have a boat-load 
(if plaintiffs had as many) sent to Radcliffe Wharf, which was done. 
No more were sent or asked for till December, 1849, when Smith called 
upon the engineer for money, and he inquired whether plaintiffs had 
any chairs. Smith' replied that Ahej had some, which had been made 
a long time. The engineer said that, if plaintiffs had 100 tons, they 
might send them, but they were not to make any more, as they would 



[♦134 



17 ADOLPHUS & ELLIS. N. 8. 188 

not be wanted, for the defendants had as many as were necessary to 
carry the line to Grantham. Plain tiffs sent all they had, about 53 
tons : and no more were sent or required afterwards. During the sup- 
ply the payments were not made punctually according to contract ; nor 
had the plaintiffs delivered the stipulated quantities of chairs at the 
appointed times respectively ; which omission on their part they attri- 
buted to the interruptions above stated. A large stock of iron re- 
mained on the plaintiffs' hands ; and, besides loss in the disposal of it, 
they had to pay money for breaking off engagements which they had 
themselves made for the purpose of executing this work. The quantity 
of chairs delivered was 1787 tons. 

In defence, an endeavour was made to show that the plaintiffs had 
not the requisite means to complete their contract, and that the delays 
and final cessation took place with their concurrence. It was also 
urged that the engineer was not shown to have had such authority as 
would make his acts binding on the Company. These points were left 
to the jury, who decided them in favour of the plaintiffs. 

It was further contended that the averment by ♦plaintiffs in 
the declaration, of readiness and willingness to perform their 
contract, was not borne out, inasmuch as the plaintiffs had not offered 
to deliver, nor had ever made, the residue of the chairs ; nor was it 
proved that the defendants had prevented and discharged plaintiffs 
from supplying such residue, since it did not appear that the Company 
had impeded the delivery by any active interference, or had counter- 
manded it under their seal or by any authoritative Cfmmunication. On 
the first of these points, Coleridge, J., said : There is no evidence of any 
refusal to accept ; no evidence of their having said, for example, << We 
insist upon your completing the contract, and, if you do not, we shall 
bring an action.*' •There is no offer to send the chairs, and no refusal 
to accept ; nor is there the slightest ground for believing that the plainr 
tiffs have ever made these chairs : but I think the law is not so unrea- 
sonable as to compel parties to be at the expense of making these chairs 
if those who contracted to purchase have in truth told them they would 
not accept them ; and I think the defendants had given very effective 
notice that they were not to be made. On the second point his Lord- 
ship said, after reading the material statements of the witnesses : Upon 
this evidence you are to say whether or not the directors refused to 
accept. Why, they certainly have not in form ; but do they, by any 
intervention on their part, cause the plaintiffs not to go on to complete 
the delivery ? If you think that they did, then that issue, like the 
former, should be found for the plaintiffs ; but, if you think not, then 
that issue should be found for the defendants. With respect to the 
authority of the engineer to suspend and stop the^work, and the respon- 
sibility of the Company for his directions, though not warranted under 



184 CORT V. AMBERGATE, Ac., RAILWAY CO. T. T 1861. 

^.Qc-i their seal, the learned Judge obseryed: This contract ^was en- 
^ tered into under seal by the Ambergate Railway Company, a 
corporation, on the one part, who are linder certain disabilities and 
disadvantages which do not attach to other people : but the corporation 
all the way through seem to have ' been represented by certain indivi- 
duals ; and the most important person with whom they (plaintiffs) have 
had to do is the engineer ; and I think rightly and properly, and that 
he was a necessary man to go between these parties. Without his cer*- 
tificate the plaintiffs could n^t get any money ; and, before he would 
certify, he would have to be satisfied that they had a perfectly flat 
chair.(dr) I shall advise you very much to consider this case as one, in 
the particular parts to which I shall draw your attention, in which yon 
should look upon everything done by the engineer as if it was done by 
the Company itself, as far as the plaintiffs are concerned. As to the 
damages, his Lordship said that the plaintiffs, if they had a verdict, 
.were entitled to be put into the same situation as if they had completed 
their contract ; and he suggested modes in which the damage, upon the 
whole quantity undelivered, might be estimated, but without giving any 
actual direction upon this subject. 

The learned Judge read over to the jury the material parts of the 
evidence on all the points ; and they found a verdict for the plaintiffs, 
damages 18002. 

Macaulay^ in the ensuing term, moved for a new trial on the ground 
of misdirection on the points of readiness and willingness, and of .pre- 
vention ; and he also objected to the summing up as to the authority 
of the engineer, and on the question how far the plaintiffs *were 
shown to have concurred in the stopping of their work. He cited 
West V. Blakeway, 2 Man. k 6. 729 (£. C. L. R. vol. 40), Phillpotts 
V. Evans, 5 M. & W. 475,t and Ripley v. M'Clure, 4 Exch. 345.t(i) 
And he contended that the d'amages were excessive, inasmuch as the 
verdict was given in respect of all the chairs, whereas some had been 
undelivered on the appointed days, before the final stoppage, and with- 
out any compulsion upon the plaintiffs not to deliver them. A rule nisi 
was granted. 

Humfrey and Willmore now showed cause.(c) — The plaintiffs proved 
that^ they were ready and willing to deliver all the chairs, if the defend- 
ants had not prevented them. There could be no obligation to tender 
them, after the Company had said that they would not be received. 
The defendants will be obliged to contend that their contract could not 
be broken but by an order under seal. [Lord Campbell, C. J. — That 
it could not be altered but under seal. Pattbson, J. — The argument 

(a) The specifloatipn required that the nnder side of the ehuir should be "perfectly flat mnd 
OTen on the surface." 

(6) See M'Clore o. lUpley, to Bxeh. Ch., 5 Kzeb. 140.f 

(e; Before Lord Campbell, C. J., Pattesou, Coleridge, and Brie, Ji. 



*186] 



17 ADOLPHUS & ELLIS. N. 8. 186 

» » 

will apply only to the dischargiDg.] The plaintiffs had no means of 
obtaining a discharge under seal. Discharge of the plaintiffs, or refusal 
to fulfil their own contract, are, for the present purpose, the same thing. 
To say that a seal was necessary to the discharge is to extend the law 
as to the making of contracts by a Company to the breaking of them, 
and to require a formal contract for both. But, further, the averment 
put in issue here is that the defendants «< refused to accept" the resi- 
due of the chairs, and *« prevented and discharged" plaintiffs from sup- 
plying them. It is enough if the refusal and ^prevention be r4ciQ7 
proved. They are an act in pais, equivalent to a discharge. ^ 
Otherwise the most formal tender of the chairs would not have entitled 
the plaintiffs to sue, unless there had been an express discharge by the 
Company, and that regularly accepted by the plaintiffs. Refusal, and 
the continuance of it, were the questions which went to the jury in 
Bipley v. M'Clure, 4 Exch. 845 ;t and it was held that their finding 
for the plaintiff entitled him to recover in an action of assumpsit for 
discharging him from delivery of a cargo and refusing to purchase it 
according to contract. [Lord Campbell, C. J. — You say that it is not 
necessary here to show that the contract was varied or put an end to : 
that the act of the defendants was a. flat breach of the contract, which 
dispensed with your performance.] That is so. The ability of the 
plaintiffs, if they had not been prevented, was amply proved. (The 
plaintiffs' counsel commented upon the cases of West v. Blakeway, 2 
M. k 0. 729 (E. C. L. R. vol. 40), and Phillpotts v. Evans, 5 M. & W. 
475,t cited in moving for the rule ; but these are so fully discussed in 
the judgment of the Court, who took the same view of them, that a 
farther notice of this part of the argument is unneeessary.) As to the 
specific act of prevention here, the engineer was a person whose pro* 
oeeding might bind the Company, if he had their authority ; and this 
£act was affirmed by the jury.. • The Company's acts must be done 
through some individual agent : and the engineer, by refusing to certify 
for the purpose of warranting payment, might, individually, stop the 
further delivery. [Lord CampbBll, C. J. — The Company never inter- 
fered ; and that seems to have justified the jury in finding that his act 
was theirs.] Glover v, London & North Western Railway *Com- p^- „« 
pany, 5 Exch. 66,t is an authority for the plaintiffs on this point. ^ « 
Afl to damages, the learned J^udge did not dictate to the jury any par- 
ticular mode of estimating them, but only laid down as matter of law 
that the plaintiffs should be put into the same situation as if the con- 
tract had been fulfilled ; which was correct. 

Macaulay and DenucUj contrd,. — The plaintiffs, in order to recover, 
were bound to prove a delivery or something equivalent ; the equivalent 
relied upon was a discharge or prevention, which appear to have been 
treated at the trial as the same thing. That a mere* dispensation by 
parol would not suffice is clear from West v. Blakeway : and the only 

VOL. XVII. — 14 



138 CORT V. AMBEROATE. Ac., RAILWAY CO. T. T. 1851. 

p 

modes in which the plaintiffs could exonerate themselves from the con- 
dition precedent were, either a competent dispensation or an actual 
prevention by the covenantee. << Discharge/' in pleading, is taken to 
mean a discharge legally operative ; that is, where the obligation is by 
deed, a discbarge by deed ; Brymer v. Thames Haven Dock k Railway 
Company, 2 Exch. 549.t What amounts to legal prevention is shown in 
Cpm. Dig. Condition^ (L 6). << So the performance of a condition shaP 
be excused by the obstruction of the obligee : as if a condition be to 
build an house ; and he, or another by his order, hinders his coming upon 
the land." Other instances are then given ; and it is added : (^ Bat it 
ought to be an obstruction which disables the performance." What woold 
or would not amount to a disability appears by (M 5) of the same title. 
*1^*Q1 C^^'*^ Campbell, C. J. — The examples *there regard condi- 
-* tions to enfeoff; I think they are not much to the present pur- 
pose.] There must be a prevention. [Lord Campbbll, C. J. — Of what ? 
CoLERiDQH, J. — Suppose a man said, «< If you come for such a purpose, 
I will blow your brains out." That would be no physical prevention. 
Lord Campbell, C. J. — Such a threat might be used ten days before 
the act was to be done.] Its effect must be judged of by a jury. In 
West V. Blakeway, 2 Man. k G. 762 (E. C. L. R. vol. 40), Tindal, C. 
J., thought that, if the plea had disclosed << an act which the lessor had 
done, or which he had compelled to be done," it would have been good 
Bosanquet, J., said : « I agree that if the covenantee prevent the per- 
formance of the covenant by an act of his own, his right of action for 
the breach of that covenant is destroyed. But the act, to constitute 
such a defence, must be the immediate act of the covenantee." And 
Coltman, J., said that the fallacy in the defendant's argument was its 
assuming (< that there was an act done by the lessor by which the lessee 
was prevented from performing his covenant." Reference is there 
made to the Case of the Master of St. Catherine's,(a) where the breach 
of condition by the lessee was caused by an actual ouster and force on 
the part of the lessor, who afterwards sought to take advantage of the 
condition ; but it clearly was considered that nothing short of such 
force would be an excuse. No direct authorities as to prevention have 
been found ; but it is evident that there ought to be a prevention in 
fac^ when the party alleging it was ready, and did all that lay in him, 
to perform his part of the contract. [Erlb, J. — There is prevention 
by a series of acts. Coleridge, J. — You would not admit such a 
waiver as was allowed in Ripley *». M'Clure, 4 Exch. 346.t Lord 



♦140]. 



Campbell, C. J. — According to your argument, even a notice 



under the common seal of the Company to send no more chairs would 
have been insufficient.] That would be a discharge, not a prevention ; 
and the proper mode of doing such act is pointed out by the Companies 

(a) Cited in Franoei'i Caae, 8 Rep. 01 b. 



17 ADOLPHUS & ELLIS. N. S. 140 

Olaoses Consolidation Act, 1845, 8 t 9 Vict, c. 16.((i) In Ripley v. 

M*Glare, the point of time at which the breach of contract took effect 

was held to be the time when the ship arrived at Belfast, and the 

cargo was to be delivered and accepted, no intermediate act remaining 

to be done. A previous refusal, unless the evidence had shown that it 

continued down to that time, would have been unimportant. The same 

coDcIusion may be drawn from Phillpotts v. Evans, 5 M. & W. 475.t 

[Lord Campbkll, C. J. — According to your view, if the party who 

contracted to purchase were to say, «< I am insolvent, and your finishing 

the article will be of no use," the vendor could not recover unless he 

finished and tendered it. Erle, J. — Suppose the contract was that 

plaintiff should send a ship ta a certain port for a cargo, and defendant 

should there load one on board; but defendant wrote word that he 

could not furnish a cargo: must the ship be sent, to return empty? 

Lord Campbell, C. J. — If it were law, it could not be sen8e.(()] In 

Planch^ V. Colburn, 8 Bing. 14 (E. C. L. R. voL 21), the defendants 

had engaged the- plaintiff to vfrite a work for publication, but abandoned 

the publication when the work was partly completed ; and the Court of 

^Common Pleas held that he might recover for so much as he r^^A^ 

had done, without having tendered the work. There it must ^ 

have been considered that the contract was rescinded, and that the 

plaintiff might recover upon it for so much as he had been allowed to 

execute : upon the facts here, a rescinding cannot bo assumed, and the 

pls^intiffs, in order to recover, must have carried out the contract. 

[CoLSRiDOB, J. — Could the contract be rescinded without consent of 

both parties ? The judgment of Bosanquet, J., in Planch^ v. Colburn,(c) 

is against your view. Erlb, J. — Ttfe Court there do not say that the 

contract was rescinded.] {Euwfrey referred to the observations on 

this case in Goodman v. Pocock, 15 Q. B. 576, 582 (E. C. L. R. voL 

69) ; and Erls, J., cited Elderton v. Emmens, 6 Com. B. in Exch. Gh. 

160.(d)) 

The learned Judge in the present case told the jury to assume that 
the engineer's acts were authorized by the Company ; but there was no 
evidence of their sanction. [Colbridqb, J. — ^Not by orders under seal ; 
but there was other conduct that showed it.] (The discussion as to 
the evidence, and the words used by the learned Judge, is on^tted. 
Lord Campbell, C. J., said : It was not a direction in point of law ; 
and I should have advised the jury so myself.) 

In considering what a corporation may authorize without seal, refer- 
ence must be had to the nature and objects of the incorporation; 

(a) See leeL 02, et leq. 

(6) Cook V. JeDoingfl, 7 T. R. 881, wu here eited; bat Lord CftmpbeU, C. J., said: That hai 
nothing to do with thie cue. 

(e) 8 Btng. 14. See S. C, 1 Mo. k Scott, 51 (E. C. L. R. toI. 28). 

(<f) RoTening the jodgment of 0. P. in Blderton «. Emmens, 4 Com. B. 479 (E. C. L. R. toL 
M). Judgment of Sxch. Ch. aflnnod ia Dom. Proo. ; Bmmeiif e. Eldertop, 4 Ho. L. Ca. 624b 



141 CORT V. AMBEROATE, Ac., RAILWAY CO. T. T. 1861. 

that principle was acted npon in Beverley v. The Lincoln Oas Light k 
*1421 ^^^^ Company, 6 A. & E. 829 (E. C. L. R. vol. 83), ♦Mayor of 
-' Ludlow V. Charlton, 6 M. & W. 815,t and Paine v. Strand Union, 
8 Q. B. 326 (E. C. L. R. vol. 55) ; and Ridley v. Plymoath Grinding 
k Baking Company, 2 Szch. 711,t ahowa how atrictly the Coarts will 
examine the authority of individuals to bind a joint stock corporation 
instituted for the purposes of a special Act of Parliament. [Lord 
Campbbll, C. J.^— It appears here that, according to the course of the 
Company's business, it was left to the engineer to manage the affairs in 
question ; and that in those they were represented by him.] Cox v» 
The Midland Counties Railway Company, 8 Exch. 268,t is another 
authority for the defendants on this point. [Lord Campbell, C. J. — 
There never was a case reported which admitted of less doubt.] 

As to the damages. Until the first actual stoppage, in January^ 
1848, the plaintiffs might have delivered the chairs on the days specified; 
if any remained on hand by reason of their omission to do so, it was 
their own fault : and damages ought not to have been awarded to them 
for loss of profit on the whole amount finally^ undelivered, but only on 
that which they were prevented by express prohibition from delivering 
on the stated days. (They also contended that, on the amount for 
which damages might be claimed consistently with this objection, the 
assessment was not justified by the evidence.) Our, adv. vuU. 

Lord Campbell, C. J., on a later day of the term (June 4th), deli- 
vered the judgment of the Court. 

We are of opinion that the verdict found for the plaintiffs ought not 
to be disturbed. As to the supposed misdirection : the learned Judge 
at the trial did not ^direct the jury that in point of law the 
engineer had authority to bind the Company, but only left it to 
the jury to consider whether, in point pf fact, the Company by their 
mode of dealing had authorised and sanctioned his acts. His Lordship 
intimated that he thought the evidence was strong to show that they 
had done so, but that it was for the jury to give the evidence its due 
weight. The objection of misdirection therefore fails. 

N^xt we^ have to consider whether the plaintiffs were entitled to a 
verdict on the issue whether they were ready and willing to execute and 
perform the said contract according to the said conditions and stipula^ 
tions, in manner and form, &c. ; and on the issue whether the defend- 
ants did refuse to accept or receive the residue of the chairs, or prevent 
or discharge the plaintiffs from supplying the said residue, and from 
the further execution and performance of the said contract. It is not 
denied that, if the defendants would have regularly accepted and paid 
for the chairs, the plaintiffs would have gone on regularly making and 
delivering them according to the contract : the objection is that, al- 
though the plaintiffs were desirous that the contract should be fully 
performed, yet, after receiving the notice that the Company did not 



>148] 



17 A.D0LPHU8 & ELLIS. N. 8. 148 

wiBh to have any more chairs, and would not accept any more, they 
oeaaed to make any more, insomuch that the residue which the Com* 
pany are alleged to have refused to accept never were made. [The do* 
fendants contend that, as the plaintiflfs did not make and tender the 
residue of the chairs, they cannot be said to have been ready and lull- 
ing to perform the contract; that the defendants cannot be charged 
with a breach of it; that, after the notice from the defendants, whi^ 
in truth amounted to a declaration thiit *they had broken and r«^^4 
thenceforward renounced the contract, the plaintiffs, if they *- 
wished to have any redress, were bound to buy the requisite quantity 
of the peculiar sort of iron suited for these railway chairs, to make the 
whole of them according to the pattern, with the name of the Company 
upon them, and to bring them to the appointed place? of delivery, and 
tender them to the defendants, who, from insolvency, had abandoned 
the completion of the line for which the chairs were intended, desiring 
that no more chairs might be made, and declaring, in effect, that no 
more should be accepted or paid for. We are of opinion, however, that 
the jury were fully justified upon the evidence in finding that the plain- 
tiffs were ready and willing to perform the contract, although they 
never made and tendered the residue of the. chairs. In common sense 
the meaning of such an averment of readiness and mllingnese must be 
that the non-completion of the contract was not the fault of the plain- 
tifi, and that they were disposed and able to complete it if it had not 
been renounced by the defendants. What more can reasonably be re- 
quired by the parties for whom the goods are to be manufactured ? If, 
having accepted a part, they are unable to pay for the residue, and have 
resolved not to accept them, no benefit can accrue to them from a use- 
less waste of materials and labour, which might possibly enhance the 
amount of damages to be awarded against them. 

Upon the last issue, was there not evidence that the defendants 
refused to accept the residue of the chairs ? If they had said, <« Make 
no more for us, for we will have nothing to do with them," was not that 
refusing to. accept or receive them according to the contract? But the 
learned counsel for the ^defendants laid peculiar stress upon the r^Mkr 
words <«nor did they prevent or discharge the plaintiffs from ^ 
supplying the said residue" of the chairs << and from the further execu- 
tion and performance of the said contract." We consider the material 
part of the allegation which the last plea traverses to be, that the de- 
fendants refused to receive the residue of the chairs. But, assuming 
that the whole must be proved, we think there is evidence to show that 
the defendants did prevent and discharge the plaintifis from supplying 
the residue of the chairs, and from the further execution of the con- 
tract. It is contended that ** prevent'* here must mean an obetruetian 
igf pkjfeieal faree ; and, in answer to a question from the Court, we 
were told it would not be a preventing of the delivery of goods if the 

E 



145 CORT t^.'AMBERGATE, &o., RAILWAY CO. T. T. 1851. 

purchaser were to write, in a letter to the person who onght to snpplj 
them, <( Should you come to my honse to deliver them, I will hlow your 
brains out." But may I not reasonably say that I was prevented from 
completing a contract by being desired not to complete it ? Are there 
no* means of preventing an act from being done, except physical force' 
or brute violence 7 Again, we are told there can be no << discharge* by 
Incorporation unless by deed under the corporate seal. Of a discharge 
iu one sense of the word this is true. A discharge is sometimes used 
as equivalent to a releascy which must be under seal ; Brymer v. Thames 
Haven Dock h Railway Company, 2 Exch. 549.t But we conceive 
that, in the allegation traversed by the last plea, discharge only means, 
*lif)l ^^^^ preventy that the act of the defendants was the cause *of the 

-* residue of the chairs not being delivered, and of the contract not 
being further executed or performed. Taking the language employed 
in its natural and reasonable sense, there was abundant evidence to 
support the finding of the last issue for the plaintiffs. 

It is averred, however, that there are express authorities to show 
that there could he no readiness and willingness to perform the con- 
tract unless all the chairs were finished and tendered ; that to present 
must be by positive physical obstruction, and that there can be no c7£»- 
charging unless by instrument under seal. The first case relied upon 
was West v. Blakeway, 2 Man, &; 6. 729 (E. C. L. R. vol. 40), in which, 
an action being brought by lessor against lessee on a covenant to yield 
up at the expiration of the term all erections and improvements set up 
or made during the term, assigning for breach the removal of the sashes 
and framework of a greenhouse erected during the term, it was held to 
be a bad plea that there was a subsequent parol agreement between the 
parties that if the lessee would erect a greenhouse he should be at 
liberty to pull it down and remove it. But this merely illustrates the 
well known rule that a covenant under seal cannot be varied by parol : 
Unumquodque ligamen dissolvitur eodem ligamine quo ligatur. It has 
no application to* a case where the covenantor is prevented from per- 
forming the covenant by the covenantee. In 1 Roll. Ab. 458, and in 
Slprin. Abr. 242, 8, tit. Condition (M. c), will be found various in- 
stances of a covenant being discharged without deed by the act of the 
covenantee. 

The next case relied on by the defendants' counsel was Phillpotts v. 
^^ ..^ Evans, 5 M. & W. 475. f That was an action of ^assumpsit for 

-* not accepting a quantity of wheat sold early in January, 1839, 
by the plaintiffs at Gloucester, « to be delivered at Birmingham as soon 
as vessels could be obtained for the carriage thereof.'' On the 26th of 
January the defendant gave notice to the plaintiffs that he would not 
accept the wheat if it were delivered. It was then on its way by canal 
to Birmingham ; and, on its arrival there, the defendant was required 
to accept ity but he refused to do so. The only question at the trial 



17 AD0LPHD8 & ELLIS. N. 8. 147 

was as to the time with respect to which the damages were to be calcu- 
lated. The market having continued to fall from the day of the con* 
tract till the bringing of the action, the defendant sought to take ad- 
vantage of his own wrong, and to calculate the damages according to 
the price in the market on the 26th January when he gave notice that 
he intended to break the bargain ; but it was very properly held that 
the plaintiffs were entitled to damages according to the market price 
when the wheat was tendered to the defendant for acceptance. The 
Court cannot be considered as having decided that, if the notice had 
been "received by the plaintiffs before the wheat was sent off from 
Gloucester, the plaintiffs might not at their pleasure have treated it as 
a breach of the contract and commenced an action against the defend- 
ant for not accepting it, without tendering it to him at Birmingham. 

The most recent case cited by the defendants' counsel was Ripley v. 
M'Clure, 4 Exch. S45.t This case is very complicated in its circum^ 
stances ; but the second point decided in it is the only one applicable 
to the question which we have to consider. There being an executory 
contract, ^whereby the plaintiff agreed to sell and the defendant r4ti4o 
to buy, on arrival, certain goods, to be delivered at Belfast at a ^ 
certain price, payable on delivery, it was held that a refusal by the 
defendant before the arrival of the cargo to perform the contract was 
not of itself necessarily a breach of it, but that such refusal, unretracted 
down to and inclusive of the time when the defendant was bound to 
receive the cargo, was evidence of a continuing refusal and a waiver of 
the condition precedent of delivery, so as to render the defendant liable 
for the breach of contract. But, in the case at bar, the refusal never 
was retracted ; and therefore there was a continuing breach down to the 
time when this action was commenced. 

Upon the whole, we think we are justified) on principle and without 
trenching on any former decision, in holding that, when there is an 
executory contract for the manufacturing and supply of goods from 
time to time, to be paid for after delivery, if the purchaser, having 
accepted and paid for a portion of the goods contracted for, gives notice 
to the vendor not to manufacture any more as he has no occasion ^r 
them and will not accept or pay for them, the vendor having been 
desirous and able to complete the contract, he may, without manufactur- 
ing and tendering the rest of the goods, maintain an action against the 
purchaser for breach of contract ; and that he is entitled to a verdict on 
pleas traversing allegations that he was ready and willing to perform 
the contract, that the defendant refused to accept the residue of the 
goods, and that he prevented and discharged the plaintiff from manu-^ 
fiacturing and delivering them. 

We are likewise of opinion that, in this case, the damages are not 
excessive, as the jury were justified *in taking into their calcula- r^c^i ^g 
tioQ all the chairs which remained to be deli^ered| and which the ^ 



149 CORT V, AMBBRGATE, Ac., RAILWAY CO. T. T. 1851. 

defendants refused to accept. They were all included in the declara. 
tion and in the issues joined : the time mentioned in the proposal for 
the delivery of some of them had arrived before the notice was given; 
but the time of delivery was not of the essence of the contract ; and the 
obligation was still incumbent upon the defendants to accept the whole 
of the residue. 

The rule must therefore be discharged. Rule discharged.(a) 

(a) S«e Hoohater v. Do la Toar, 2 S. A B. 678 (B. C. L. R. toI 75). 

As to the effect of prevention gene- 311 ; Risinger v, Cheney, 2 Oilman, 

rally in exercising performance or ten- 84; Little v, Mercer^ 9 Missonriy 218; 

der, see Costigan v. Mohawk Railroad Grove v. Donaldson, 15 Penn. State 

Company, 2 Denio, 609; Howard v. Rep. 128; Kugler v. Wiseman, 20 

Wilmington Railroad Company, 1 Gill, Ohio, 361. 



The QUEEN v. The Guardians of the Poor of ST. MARTINS IN 
THE FIELDS. May 29. 

Qao warranto lies for an offloe, thoagh not immediately derived from the Crown, if it be lo medi* 
ately (as where CommiBStoners are empowered by Act of parliament to direct that such offiee 
be created) ; if it be an independent sabetantive office ; and if it be of a public nature. 

In a parish governed, as to the Poor law, by Guardians appointed under order of the I^or Lav 
Commissioners, information in the nature of qno warranto lies for the office of Clerk to each 
Gnardians, elected by the Guardians under an order of the Commissioners, pursuant to staL 4 A 
5 W. 4, c. 76, s. 46, prescribing the duties ; the tenure being for life and during sanity, or untii 
resignation, or removal by the Commissioners : and the duties being : 1. To attend all moei> 
ings of the Board of Guardians and to lieep their minutes : 2. To lieep, check, and examine all 
accounts, and other documents relating to the business of the Guardians, and product them tn 

• the auditor. 3. To peruse and conduct the correspondence of the Guardians, and preserve tk« 
tame, and all orders of the Commissioners, and make all neeessary copies of letters, Ac. 4. To 
prepare all written contracts and agreements to be entered into with the Guardians, and bonds, 
Ac, to be given by parish officers, and to see them duly executed. 5. To summon extraordU 
nary meeiings on requisition, and to issue all notices to the Guardians. 6. To countersign all 
legal orders of the Guardians on overseers for payment of money, and all legal orders of tlio 
Guardians upon the treasurer. 7. To ascertain and enter the balance of account with tb« 
treasurer in the minute book before every ordinary meeting. 8. To lay the non-settled and 
gpion-rosident poor accounts quarterly before the Guardians, and to take their directions as to 
settlement of accounts with other parishes or unions. 9. To transmit periodical statements oC 
relief had by non-settled poor to the parishes or unions on account of which it was given. 10 
To communicate to the persons engaged in the relief of the poor within the parish all orders 
and directions of the Commisfioners or Guardians, give instructions for the prompt and correoi 
execution of such orders, and report defaults. 11. To conduct all applications by the Guar- 
dians to justices in special, petty or general sessions, and, if an attorney, execute the legal 
business of the parish or Guardians, with certain exceptions, making no charge except for 
disbursements. 12. To prepare and transmit all reports, answers, or returns, required by tlio 
Commissioners, to questions relative to the administration of the Poor law in the parish. lA 
f To conduct duly and impartially, and in strict conformity with the regulations in force at tbo 
time, the annuiii or any other election of Guardians. 14. To observe and execute all lawfvl 
orders and directions of the Guardians applicable to the offiee. 

A BULB nisi was obtained last term for a mandamus calling upon the 
aboYd named Guardians ii elect a Clerk* 



17 ADOLPHUS & ELLIS. N. 8. 160 

*It appeared, on aflSdavit in support of the rale, that the r^^^rn 

administration of the Poor laws in St. Martin's parish, and the ^ 

gOTernment of the workhouse, were placed in the hands of twenty-four 

Oaardians by an order of the Poor Law Commissioners, under stat. 4 

ft 5 W. 4, c. 76, dated 29th April, 1835. And that the Commissioners, 

by a subsequent order (30th May, 1835), directed that the Guardians 

should appoint a fit and proper person to be Clerk to the Board of 

Guardians ; also a treasurer and a relieving oflBcer ; and that, when any 

person so appointed should die or resign or be removed, the Board of 

Guardians should, as soon afterwards as conveniently might be, proceed 

in like manner to a new appointment ; and that the salaries of sucli 

Clerk, treasurer, or relieving oflScers should be submitted to the Com* 

missioners from time to time for their approval. By the same order it 

was directed that such Clerk should (amongst other things) observe and 

fulfil all lawful orders and directions of the Board of Guardians, and 

likewise the rules, orders, and regulations of the Commissioners. A 

Clerk was accordingly elected (June, 1885) ; and his salary was fixed at 

200{. a year. In a report, presented to the Board, May 23d, 1836, and 

adopted, his duties were described as follows. ««The duties of this 

office shall be those laid down by the Poor Law Commissioners : also to 

assist the churchwardens and overseers in their duties : his attendance 

at the workhouse shall be from," &c. (fixing hours) : the salary of 2002. 

per annum, attached *to this office, to include all law charges r^n^i-^ 

except money out of pocket. The Commissioners (in July, 1836) ^ 

approved of the report, «« and of the direction that the Clerk should 

assist the churchwardens and overseers in their duties, so far as those 

duties related to matters connected with Poor Law administration." 

The Commissioners, by a further order, of December 8th, 1847, 
addressed to the Guardians of St. Martin's and seventeen other parishes, 
directed (Article 154) that the officers appointed to or holding certain 
offices enumerated in the order,(a) including that of Clerk, should 
respectively perform such duties as might be required of them by the 
rules and regulations of the<]!ommi88ionei*s in force at the time, together 
with all such other duties, conformable with the nature of their respecli 
ive offices, as the Guardians might lawfully require them to perform. 
Also (by Art. 186), that <« Every officer appointed to or holding any 
office under this order, other iHiti a medical officer, shall continue to 
hold the same until he die, or rc.-igii, or be removed by the Commission- 
ers, or be proved to their satisfaction to be insane*" And (by Art. 201) 
that 

««The following shall be the duties of the clerk : 

No. 1. To attend all meetings of the Board of Guardians, and to 

(a) Tbey were m follows : Clerk to the GaardiAot, Treuarer of the parifh, CbapUin, Medieal 
fur the vorkboase, District medical ofleer. Muter of the Workhonee, Matron of the Work- 
Schoolmaster, Schoolmietreie, Porter, Nurse, RelieTing offleer, Superinteodent of out-door 

TOL. XVII. — 15 K 2 



151 REGINA t;. GUARDIANS OF ST. MARTINIS. T. T; 1851. 

keep punctually minutes of the proceedings at every meeting ; to enter 
the said minutes in a book, and to submit the same so entered to the 
*1 cQi presiding chairman at the succeeding ^meeting for his signature. 

'^-' No. 2. To keep, check, and examine all accounts, books of 
accounts, minutes, books, and other documents, as required of him by 
the regulations of the Commissioners, or relating to the business of the 
Guardians ; and from time to time to produce all such books and docu- 
ments, together with the necessary vouchers, and the bonds of any 
officers, with any certificates relating thereto which may be in his cos- 
tody, to the auditor of the parish, at the place of audit and at the time 
and in such manner as may be required by the regulations of the Com- 
missioners. No. S. To peruse and conduct the correspondence of the 
Guardians according to their directions, and to preserve the same, u 
well as all orders of the Commissioners, and letters received, together 
with copies of all letters sent, and all letters, books, papers, and doca- 
ment^ belonging to the parish, or intrusted to him by the Guardians, 
and to make all necessary copies thereof. No. 4. To prepare all written 
contracts and agreements to be entered into by any parties with the 
Guardians, and to see that the same are duly executed ; and to prepare 
all bonds and other securities to be given by any of the officers of the 
parish, and to see that the same are duly executed by such officers and 
their sureties. No. 5. To receive all requisitions of Guardians for 
extraordinary meetings, and to summon such meetings accordingly; 
and to make, sign, and send all notices required to be giveii to the 
Guardians by this or any other order of the Commissioners. No. 6. 
To countersign all orders legally made by the Guardians en overseers 
for the payment of money, and all orders legally drawn by the Guar- 
dians upon the treasurer. No. 7. To ascertain, before every ordinary 
^^ -o-i meeting of the Board, *the balance due to or from the parish in 

-* account with the treasurer, and to enter the same in a minute 
book. No. 8. At the first meeting of the Guardians in each quarter, 
to lay before the Guardians, or some committee appointed by them, the 
non-settled Poor account, and the non-resident Poor account, posted in 
Ilis ledger to the end of the preceding quarter, and to take the directions 
of the Guardians respecting the remittance of checks or post-office 
orders to the Guardians of any anion, or other parish, or the trans- 
mission of accounts due from unions or other parishes, and requests for 
payments. No. 9. Within fourteen days from the close of each quarter^ 
to transmit by post all accounts of relief administered in the course of 
the preceding quarter to non-settled poor to the Guardians of the anions 
and other parishes on account of which such relief was given ; and to 
state in every account so transmitted the^names and classes of the seve- 
ral paupers to whom the relief in question has been administered. No. 
10. To communicate to the several officers and persons, engaged in the 
administration of relief within the parish, all orders and directions of 



[♦154 



17 ADOLPHUS k ELLIS. N. 8. 1.^8 

the Commissioners, or of the Oaardians, and, so far as may be, to giTe 
the instructions requisite for the prompt and correct execution of all 
such orders and directions, and to report to the Guardians any neglect 
or failare therein which may come to his knowledge. No. 11. To con- 
duct all applications by or on behalf of the Guardians to any justice or 
jastices at their special, petty, or general sessions, and, if he be an 
attorney or solicitor, to perform and execute all legal business connected 
with the parish, or in which the Guardians shall be engaged, except 
prosecutiona at the ♦assizes, actions at law, suits in equity, or 
parliamentary busings, without charge for anything beyond dis- 
bursements. No. 12. To prepare and transmit all reports, answera, ot 
returns, as to any question or matter connected with or relating to the 
administration of the laws for the relief of the poor in the parish, or 
to any other business of the parish, which are required by the regula- 
. tions of the Commissioners, or which the Commissioners, or any Assist- 
ant commissioner, may lawfully require from him. No. 18. To conduct 
duly and impartially, and in strict conformity with the regulations in 
force at the time, the annual or any other election of Guardians. No. 
14. To observe and execute all lawful orders and directions of the 
Guardians applicable to his office." 

On February 24th, 1851, the Clerk to the Guardians having resigned, 
a meeting of the Board was held, at which Charles Robertson Griffiths 
was elected Clerk, the offices of Clerk and assistant having been con- 
solidated by resolution of the Board on a former day. The election 
was approved by the Poor Law Commissioners. Some of the Guar- 
dians, however, objected 'that the resolution to consolidate had been 
irregularly passed ; that Griffiths was not qualified for the office ; and 
that the vote was not taken according to law : and on these grounds 
the election was impeached, and application made for a mandamus. 

Sir F. KeUy and Pcuhley now showed cause. — [Lord Campbell, C. 
J. — ^An'answer to this motion seems to be that, according to Darley v. 
The Queen, 12 CI. k Fin. 620, a Quo Warranto information would lie 
for the office.] The *House of Lords there consulted the r^^-it^ 
Judges ; and they were unanimously of opinion that a Quo war- '- 
ranto information lies «<for usurping any office, whether created by 
charter alone, or by the Crown, with the consent of Parliament, pro- 
vided the office be of a public nature, and a substantive office, not 
merely the function or employment of a deputy or servant held at the 
will and pleasure of others. "(a) And. the House held that such in- 
formation lay for the office of Treasurer of the county of the City of 
Dublin. The office here in question emanates from the Crown, not 
immediately, but through the Commissioners, acting under stat. 4 & 5 
W. 4, c. 76, 8. 46. [Lord Campbell, C. J.-^What is done by the 
donee of the power is supposed to be done by the donor.] The office 

(a) 12 CL a Fin. Ml, 2. 



156 REGINA v. GUARDIANS OF ST. MARTIN'S. T. T. 1861. 

is of a public natare, as appears by the enumeration of duties imposed 
by the Commissioners, whose order in this respect is equiraleDt to an 
express provision in the statute ; and it is a substantive offiev. [Lord 
Campbell, C. J. — What is the tenure ?] It is held during life, and 
sanity, or until resignation or removal by the Commissioners. [Lord 
Campbell, C. J. — They may remove him at any tjme ; but the appoint- 
ment is equivalent to an appointment quamdiu se bene gesserit.] In 
Darley v. The Queen, 12 CI. k Fin. 542, the Judges, when inqairing 
whether the office was public, noticed its functions as to the assess- 
ment, receipt, and appropriation of moneys on th^ublic account. The 
Clerk here has similiar functions as to pecuniary matters. If he niia- 
applied moneys, he would be responsible as a public servant. His 
functions are recognised by stats. 5 & 6 Vict. c. 57, s. 17, and 7 ft 8 
*1W} ^^^^' ^' ^^^» ^- ^^* ^'^ ^admission, on the subject of relief to 

-" a pauper, if not rebutted, binds a parish in the Union ; Begins 
V. Wigan, 14 Q. B. 287 (E. C. L. R. vol. 68). [Pattbson, J.— In Rex 
9. Hall, 1 B. & C. 123, 237 (E. C. L. R. vol. 8), which related to the 
office of Register and Clerk of the Court of Requests at Bristol, no 
question seems to have been raised as to the remedy by Quo warranto 
until the taxation of costs, when the defendant was held not entitled 
to them under stat. 9 Ann. c. 20, s. 5.] There have been conflicting 
decisions as to the remedy in cases of this kind : in a case cited in Bex 
V. Beedle, 3 A. & £. 467, 476 (E. C. L. R. vol. 30), a Quo warranto 
appears to have been granted for the office of guardian of the poor ; 
and in the principal case that authority was acted upon. It was over- 
ruled in the subsequent case. Be Aston Union, 6 A. k £. 784 (E. C. 
L. R. vol. 33), but must be considered as re-established by Darley v. 
The Queen, 12 CI. k Fin. 520. [Goleridob, J.— If Quo warranto 
does not lie for the office of Guardian it may yet lie for that of 
Clerk.] 

Sir F. Theiiger and BramweJl, contri, were then called upon by the 
Court as to this point. — If the Court does not clearly see that this is 
an office for which Quo warranto lies, a mandamus ought to be granted; 
Rex V. The Rector, &c., of Birmingham, 7 A. & E. 254 (E. C. L. B. 
Tol. 34). [Pattbson, J.— "There we proceeded on the ground that there 
was no other remedy, taking it for granted that Quo warranto did not 
lie for the office of Churchwarden.] It is assumed here that the office 
is a public one, emanating from the Crown, because created under an 
Act of Parliament. But stat. 4 & 5 W. 4, c. 76, s. 46, only enables the 
Commissioners << as and when they shall see fit" to direct the overseers 
*1 ^71 *^^ Guardians <« to appoint such paid officers" «« as the said Com- 

^ missioners shall think necessary," for carrying the Act into exe- 
ontion. That is not a direct creation of the office. No such oflice as 
that of Clerk to the Guardians might ever have been created. And, 
if the argument could prevail, Quo warranto would lie for every office 



17 ADOLPHUS & ELLIS. N. S. 157 

with pay which the GuardiatiB might institute under order of the Com 
missioners : for example, that of Master of the workhouse, which in 
fact is one of those mentioned in the order of 1847. [Patteson, J. — 
Have you authority for saying that Quo warranto would not lie for 
that office?] It is not of a public nature; nor is that of Clerk. If 
this were within the rule laid down in Darley v. The Queen, 12 Gl. & 
Fin. 520, the offices of nurse and matron would be so. [Lord Gamp- 
bell, C. J. — It may be said that the duties of such offices are menial, 
and not public. The office in question is very different in its functions. 
It is more like that •f a treasurer.] The Glerk is but servant to the 
Gnardians in respect of a particular class of duties'. As to the employ- 
ment being public, a parish is not in all its transactions a public body, 
as appears from Rex v. Edmonton, 1 M. & Rob. 24. The functions of 
the Guardians themselves are as public and important as those of their 
Clerk ; yet Quo warranto does not lie for the office of Guardian ; Re 
Aston Union, Rex v. Ramsden, 3 A. & E. 456 (E. G. L. R. vol. 30). 
[CoLBRiDQE, J. — The Guardians are elected by the rate-payers. Pat- 
teson, J. — It is suggested by Tindal, G. J., in Darley v. The Queen, 
that in the cased of overseers, and in others analogous to them, Quo 
warranto may have been deemed not to lie because the offices were tem- 
porary ; but I can say that this *was not our ground of decision 
in the cases last cited. The office of a Mayor is temporary. It 
certainly was my opinion, and that of Lord Tenterden and Mr. Justice 
Taanton, and we uniformly acted upon it, that Quo warranto was not 
the remedy unless there were an usurpation actually upon the Grown. 
That, however, seems overruled by Darley v. The Queen.] It is now 
decided that the remedy extends to offices of a public nature. [Lotd 
Campbell, C. J. — Unfortunately the line of demarcation there is more 
doubtful.] It is very difficult to define what is an office of a pnblie 
nature. [Lord Campbell, G. J. — Whether it was on behalf of one 
parish or several united, would not, I should think, make any differ- 
ence.] The office may be deemed public if connected with the adminis- 
tration of justice. [Patteson, J. — That might be a ground of dia- 
tinction in Rex v. Hall, 1 B. & G. 128, 237 (E. C. L. R. vol. 8).] The 
same remark may apply to some offices in the new County Courts. 
Quo warranto does not lie for the office of churchwarden ; Rex v. Daw 
beny, 2 Stra. 1196; (a) nor for that of Glerk to Commissioners of land 
tax ; Rex v, Thatcher, 1 Dowl. k R. 426 ; though they are appointed 
under a stat . ?, and their clerk has public duties. [Coleridge, J., 
mentioned Ilex v. Badcock, 6 East, 359.(6)] It is clear from Darley n. 
The Queen, that an office, to be the subject of Quo warranto, must be 

(a) 8. C, mora fuUj* 1 Bott P. L. 347, pi. 358, 6th ed., where it ie said : '< Bat Uie Coart 
deoied die motion" (for Qoo warranto) ** a ehurchwarden not being mieh a pabUe officer againal 
«ko« an information would lie ; for it was no nsarpa^ion npon the Crown, and thej might m 
««ll apply foi an information againet a eonetablo^or overseer." 

(^) Cited in Bex «. The Corporation of Bedford LereL 



[*168 



168 REGINA v. GUARDIANS OF ST. MARTIN'S. T. T. 1851. 

of a Bubstantiye and independoDt character : here, if do clerk were 
*1 ^Q1 ^PP^^^^^^' ^^^ Sanctions of that office must be performed b; 
^ the Guardians themselves. He is only their assistant. [Lord 
Campbell, C. J. — Does not he countersign documents 7] If there be 
such an officer appointed, he does. The officers mentioned in the order 
of December, 1847, need not all separately exist : two offices may be 
consolidated. The duties of the Clerk are different according as be is 
or is not an attorney. In Darley v. Tie Queen the office was substan- 
tive and independent ; here it is neither. If this question be a doubtful 
one, it may be fitly argued on demurrer to a return. 

Lord Campbell, C. J. — This rule must be discharged, because man- 
damus is not the proper course of proceeding. A person, other than 
the prosecutor, has been elected ; the office is full ; therefore, accord- 
ing to the established and convenient rule, if Quo warranto lies, the 
proceeding ought to be in that form. Then, does Quo warranto lie for 
the office of Clerk to the guardians ? If this question had arisen before 
the decision in Darley v. The Queen, 12 CI. & Fin. 520, I should have 
been perplexed by the contrariety of opinions in former cases : but that 
lays down that the writ lies if the office be a substantive one and of a 
public nature, held under a statute, though the assumption of it be not 
otherwise an usurpation upon the Crown. It was formerly held in this 
Court that, unless there were a direct usurpation upon the Crown, a 
Quo warranto, or an information in the nature of it, would not lie ; bat 
Darley v. The Queen alters that doctrine. Here the office is held as 
under a statute, the Commissioners being empowered by statute to order 
*1 R01 ^^ creation : *it has express duties prescribed ; and the tenure is 
-* during good behaviour ; for, although, under the Commissioners' 
order of December, 1847, the officer is to hold only until he «^be 
removed, the removal must be on some grounds. Then, is the office of 
a public nature ? We must look to the functions, and compare them 
with those which were held to constitute such an office in Darley v. The 
Queen. The House of Lords laid down no criterion in that case ; but 
they held that the office there in question was public within the rule 
they laid down : and I think the present office is not distingaisbable. 
Whether the district for which it is exercised be a parish, or a hundred, 
or several parishes in a Union, appears to me to form no ground of 
distinction, if it be an office in which the public have an interest. I do 
not regret coming to this decision, because the rights may be tried 
more easily aud directly by means of an information than if a manda- 
mus were granted. 

Patteson, J. — Before the case of Darley v. The Queen I thought, 
and Lord Tenterden and Mr. Justice Taunton were strongly of the same 
opinion, that the remedy by Quo warranto was limited to the case where 
there was an usurpation -simply upon the Crown : -my brother Parke 



17 ADOLPHUS & ELLIS. N. 8. 160 

differed ;(a) ^nd so did Lord DenniaD,(i) though on h subsequent occa- 

8ion(c) he gave way to the authorities against granting the writ. And 

there had been instances in which the writ had been granted against 

persons acting as Commissioners under statutes. *But in Dar- r^^r*^ 

ley V. The Queen, I was satisfied upon the point, and agreed with *- 

the other Judges. Our opinion then was that, whenever an office is 

created mediately or immediately by the Grown, and is public, a Quo 

warranto lies. How far that shakes the decisions in Re Aston Union 

and other case^ cited by the Judges, I need not say ; certainly it does 

shake them. Then, does this office come within the rule laid down ? 

It is argued that, the Queen being party to the Act of parliament by 

which it is created, the usurpation of it is an usurpation upon her. 

And I think the office is created by the Crown, not immediately, but 

mediately through the Act 4 & 5 W. 4, c. 76, which, by sect. 46, 

intrusts to the Commissioners the power of causing paid officers to be 

appointed, with very stringent directions as to the duties to be required. 

If, in the present case, the officer had been, as was suggested, a mere 

servant, the office would not have been, within the rule laid down, an 

independent substantive office. But, although several of the duties are 

such as would be performed by the Guardians themselves if there were 

no Clerk, some are independent : and, the officer being appointed by 

the Guardians under an order of the Commissioners, which they could 

not give bat for the statute, I think the office is, so far, within the rule 

in Barley v. The Queen. Then, is it a public office? We are told 

that, if it were so, that of Master of the workhouse would be so too. 

But we need not inquire further than into the case before us. For some 

purposes it seems that a parish is not so far a public body as to have 

the exemptions which such a body might claim; Governors of The 

*Bri8tol Poor v. Wait, 6 A. & E. 1 (E. C. L. R. vol. 81). But j-^-gg 

the question here b not whether the body for which the officer ^ 

acts is public ; it is whether his duties are of a public nature : and, as 

the exercise of them materially affects a great body of persons, I think 

.they are so. Therefore,. according to Parley v. The Queen, Quo war. 

ranto lies, and consequently a mandamus ought not to be granted. 

CoLERiDOB, J. — The decision in Darley v. The Queen not only broke 
down the previously conceived opinion (though different ones had pre- 
vailed), but established a rule, which is difficult of application. We 
must however apply it as we can to each case that comes before us. I 
had some doubt her^ ; but I think the question may be satisfactorily 
answered under the two or three heads to which it reduces itself. First, 
the nature of the office, and secondly its tenure, brings it within the 

(a) Rax V. Bamsden, 3 A. A B. 468, 4M (B. C. L. R. toL 80). R«z v. Htnley, 3 A. A B. 48S 
Bote (6). 
(6) R«x V. Be«dle, 3 A. A E. 457. 
(e) Re Atton Udiod, 6 A. A B. 784 (B. C L. R. toL 88). 



*163] 



162 REGINA v. GUARDIANS OP ST. MARTIN'S, T. T. 1851. 

rule : the Clerk is removable by the GommiBsioDers ; bat that must be 
on cause shown. Thirdly, as to the duties, it is difficult to define what 
are of a public nature : but the Clerk here is, among other things, to 
communicate to the persons engaged in the relief of the poor through- 
out the parish all orders and directions of the Commissioners and Guar- 
dians, and to give instructions for the execution ; to conduct the elections 
of Guardians ; to be the channel of communication between the Board and 
parish officers and the Commissioners upon questions which may arise 
respecting the administration of the Poor law or other parochial busi- 
ness ; and to manage the communications also between his board and 
all other poor law boards or ^parochial bodies throughout the 
kingdom. Therefore, without going farther, or deciding any- 
thing as to other cases, which must be taken as they arise, I entirely 
agree that, in this instance, the remedy by Quo warranto applies. 

Erle J. — Three tests of the applicability of a Quo warranto are 
given by Darley v. The Queen, 12 CI. & Fin. 520 : the source of the 
office, the tenure, and the duties. The source here is a statute ; the 
tenure, secure enough to satisfy the rule : as to the duties, no defini- 
tion of public duties has been given ; all we can do is to follow such 
guidance as we have from the last cited case. If the execution of an 
office secures the proper distribution of a fund in which a body of the 
public (the contributors to a parish rate) have an interest, the office 
may be deemed public. I think the CIerk*s duties here are so, not 
only on the grounds which have been stated, but inasmuch as he has the 
countersigning of checks, a function which, if duly discharged, secures 
the ratepayers generally, and the neglect of which may prejudice them. 
I think no distinction arises from the parish being part of a union. 

Lord Campbell, C. J. — I do not by any means say that Darley v. 
The Queen applies to all the offices mentioned in the order of December 
1847 (as, for instance, to that of a nurse, which is menial) ; though it 
may be difficult to say where we should draw the line. 

Rule di8charged.(a) 

(a) See the next < 



IT ASOLPHUS k ELLIS. N. S. 164 



♦The QUEEN v. GRIFFITHS. June 16. [*164 

B7 to order of the Poor Law Commissionera regulating the prooeedinga of Goardiana of th* 
Poor in the pariah of M., the election of officera waa to be hy a minority of the Quardiana 
present at a meeting of the Board. By atat 12 A 13 Vict c 103, a. 19, in eaae of an equality 
of rotes upon any qaeetion at a meeting of Quardiana of any Union or pariah, the Chairman 
has a " second or casting vote." 

At an election of Clerk to the Quardiana of M. twenty-two Quardiana attended. On their 
assembling, the chairman aaid he afaould not vote for any candidate, but merely preside at the 
meetiog as chairman. He did ao, and took the votes, of which there were eleven for one 
candidate and ten for another. The former waa declared elected, and entered upon the office. 
On motion for a Quo warranto. 

Held that the Chairman could not be conaidered aa having, for the purpoae of the election, with- 
drawn; and that each election waa void, aa not having been determined by a minority of the 
Quardiana preaent 

After the decision in the Idst case, Sir F. Theaiger obtained a rale 
nisi for a Quo warranto information against Griffiths for exercising the 
office of Clerk to the Guardians. 

It appeared on affidavit that the 88th article of the order of the Poor 
Law Commissioners (referred to in the last case) dated 8th December, 
1847, was a.s follows : «< Every question at any meeting consisting of 
more than three Guardians shall be determined by a majority of the 
votes of the Guardians present thereat, and voting on the question ; 
and, when there shall be an equal number of votes on any question, 
such question shall be deemed to have been lost." And that Article 
155 was : " Every officer and assistant to be appointed under this order 
shall be appointed by a majority of the Guardians present at a meeting 
of the Board, consisting of more than three Guardians, or by three 
Guardians if no more be present.^ The election of Griffiths took place 
at a meeting of twenty-two Guardians. The Chairman of the Guardians 
informed them, as soon as they were assembled, that he intended not 
to vote for *any one of the candidates (there being four), amd r^^r^f- 
should merely preside at the meeting as chairman. He did so, ^ 
and took the vote8.(a) There were eleven for Griffiths, ten for another 
candidate, and none for either of the remaining two. Griffiths was de« 
clared to be elected, and afterwards entered upon the office. 

Sir F. Kelly ^ with whom was P<i9hleyy now showed cause. — It will be 
objected that Griffiths was not elected, according to Article 155, by a 
majority of the Guardians present, the Chairman having legally a vote, 
and not having given it. If the Court is of that opinion, i#will be use- 
less to go farther. But a question may be, whether ihe Chairman, 
after bis der' . ation that he did not intend to vote, was not virtually 
absent for the y irpose of the election. [Lord Oampbell, 0. J. — There 
might perhaps have been a withdrawing of the Chairman, like the Lord 
Chancellor going behind the woolsack, or the Speaker behind th'e chair : 
but if he actually continued present, the case is different.] 

(a) There waa an objection to the manner of taking the votea, which the reaolt of the preaent 
taM makea it nnneeeaaary to atate. 

VOL. XVII. — 16 L 



165 RE6INA v. GRIFFITHS. T. T. 1851. 

Sir F. Thesiger, contrd, referred to stat. 12 k 18 Vict. c. 108, a. 19, 
which enacts: «That in the case of an equality of votes upon any 
question at a meeting of the Guardians of any [Jnion or parish the pre> 
siding Chairman at such meeting shall have a second or casting vote/' 
*1661 ^^^^ Campbell, C. J. — We all think that in this *case the 
-* Chairman was a Guardian present ; and therefore the eleren did 
not constitute a majority. 

Pattbson, Colbridoe, and Erle, Js., concurred. 

The rule was made absolute ; it being understood that no infor- 
mation should issue, and that Griffiths would resign within 
a week, performing the duties of Clerk only until a new 
election. 



JOHN DOE V. THOMAS CHALLIS. May 30. 

In an action of treipau for metne profits, it n'ppoared on the trial that the defendant bad been 
let in to defend an ejectment, under a consent rule in which he was described as "mortgagee 
and landlord ;" in other respects in the nsnal form ; and that the lessor of the pUdntiff reooyered 
in that ejectment The defendant was mortgagee ; but it appeared that he never was in poa- 
sesston, the profits being in fact taken by a receiver appointed bj the Court of Chancery. 

Held that defendant was concluded by having become defendant in the ejectment under the 
eonsent rule,. and could not allege on this trial that he was out of possession after the time cf 
the service of the declaration. 

Trespass for .mesne profits. Plea : Not Guilty. Issue thereon. 

On the trial, before Erie, J., it appeared that Challis had been made 
defendant in an ejectment for the premises, under a consent rule, and 
that the lessor of the plaintiff had recovered in that action. The con* 
sent rule ordered that « Thomas Challis, the mortgagee and landlord 
of the tenants in possession of the premises in question in this cause, 
be made defendant instead of the now defendant Richard Roe." It 
was in all respects in the ordinary form of the consent rule made 
where a landlord becomes defendant, except that Challis was described 
*1R71 ^^i*<^uS^o^^ ^ «< mortgagee and landlord," and not ^merely as 
^ <( landlord." It appeared that in fact he was mortgagee, but not 
in possession, and that the rents were taken by a receiver appointed by 
Chancery. 4?he amount taken by the receiver after the service of the 
ejectment was shown ; and it appeared that the defendant had a por- 
tion of these rents from the receiver, as one of the persons beneficially 
interested. The lessor of the plaintiff only asked for a verdict for thia 
latter amount. It was objected for the defendant that there was no 
case against him to recover anything, as he was not in possession, either 
by himself or his tenants. The learned Judge directed a verdict for the 
plaintiff, with leave to move to enter a verdict for the defendant if the 
judgment in ejectment, and the consent rule, were not conclusive. 



[♦168. 



17 ADOLPHUS & ELLIS. N. S. 167 

Hoggtnn now moved accordingly. — The judgment and consent rnle 
are evidence against the defendant ; hat they do not estop him from 
showing the fact that he was never in possession. [Lord Campbell, 
C. J. — Are you not averring against the record of the ejectment, on 
the face of which the defendant is the ejector ? Colbridob, J., referred 
to Doev. Wright, 10 A. k E. 768 (E. C. L. B. voL 87).] The defend- 
ant in this case does not contradict the judgment ; he explains it by 
showing that he came in to defend the ejectment for the purpose of try- 
ing the title, not as being in possession. The consent rale may be 
explained; Doe dem. Fellows v. Alford, 1 Dowl. & L. 470. [Lord 
Oampbkll, C. J. — Does he not acknowledge, by commg in to defend 
the action, that the person who is in possession and is served with the 
ejectment is his ^tenant ? And is there any hardship in saying 
that, as the lessor of the plaintiff is, in consequence of this, 
deprived of his remedy against the tenant, the man who takes such a 
step is bound by it ? Pattbson, J. — The person who causes another 
to occapy, is himself liable for mesne profits ; Doe v. Harlow, 12 A. & 
£. 40 (£. C. L. R. vol. 40).] In the present case he does not come in 
as landlord, but as mortgagee and landlord; these words have been 
introduced to show that he merely 'defends on the ground of title, and 
does not conclusively admit possession. ' 

Lord Campbbll, G. J. — For the reasons thrown out in the coarse of 
the argument, I think there should be no rule. 

Pattbson, J. — Mr. Hoggins seems rather to rest his case on the word 
«< mortgagee" introduced into the consent rule. But t}ie essence of the 
rule is that he comes in as landlord ; it is only as landlord that he can 
defend under stat. 11 G. 2, c. 19, s. 13. 

CoLBRiDOB, J. — Justice requires that he who comes in as landlord to 
defend an ejectment, on the ground that the person against whom it is 
brought is his tenant, should beVin the position which the tenant would 
have been in had he defended. Now the tenant himself could not, after 
having entered into the consent rule, dispute his possession. Formerly 
it was otherwise : the consent rule did not require the defendant to 
admit possession ; and the lessor of the plaintiff was liable to be turned 
round on that ground. But the form of the ^consent rule has ^^^ /»q 
been altered ;(a) and this confession is binding on the tenant.(i) *- 
It is clearly just that the person who comes in his place as landlord 
should be in the same situation. 

Erlb, J. — The question was whether this consent rule was binding 
on the defendant as evidence of possession, so as to make him liable 
for the mesne profits from the time of the service of declaration. I 
think it cannot admit of reasonable doubt that it was. The lessor of 
the plaintiff brought his ejectment against the tenant in possession. 

(a) Se« Reg. Oen. Mieh. 1 G. 4, 4 B. A AM. 108 (B. 0. L. B. toL 6). 
(fr) 8m I>odweU 9, GibtM, 2 Car. A P. 616 (B. C. L. B. toL U). 



DOB V. CHALUS. T. T. 1851. 



That tenaDt would have let him into possesaion ; but Cfaallis comes and 
claims to prevent this. His claim is under a statute which allows this 
proceeding by the landlord of the person in possession. His claim 
therefore is as landlord : he obtains the benefit of defending the eject- 
ment as landlord, and delays the plaintifi*: and, having thus asserted as 
a fact that he was landlord of the person in possession, for his own 
benefit, and to the prejudice of another, he is, according to the doctrine 
in Pickard v. Sears, 6 A. & £. 469 (E. G. L. R. vol. 83), precluded (I 
purposely avoid using the word estopped) from denying that fact against 
that person. I think in holding this we follow out the doctrine laid 
down in Aslin v. Parkin, 2 Burr. 665. There Lord Mansfield lays down 
that which is now familiar law, that « An action for the mesne profits 
is consequential to the recovery in ejectment. 'It may be brought by 
the lessor of the plaintiff in his own name, or in the name of the nominal 
lessee; and in either shape, it is equally his action. The tenant 
*l7ni *'^^ concluded by the judgment, and cannot controvert the title. 
^ Consequently, he cannot controvert the plaintiff's possession; 
because his possession is part of his title.'* All this is applicable to all 
actions in ejectment in which there has been judgment. But Aslin v. 
Parkin was a case in which the judgment had been by default against 
the casual ejector ; and Lord Mansfield adds : «« As to the length of 
time the tenant has occupied, the judgment proves nothing." These 
words are, I apprehend, applicable only to a judgment by default: but 
at all events the altered form of the consent rule alters this if it was 
applicable to a judgment after the defendant appeared. The defendant 
now at least admits he was, by himself or his tenant, in possession at 
the time of the service of declaration. With respect to value, the 
demise and consent rule prove nothing ; but in this case the value was 
proved by independent evidence. Rule refused.(a) 

(a) Reported by C. BUekburn, Esq. 
See Stat. 15 A 16 Viot. e. 7A, s. 207. 



*171] *In the Matter of WADSWORTH and the QUEEN OF SPAIN. 
In the^Matter of DE HABER and the QUEEN OF PORTUGAL. 

Property in England, belonging to a foreign soverei;!:n prince in his pablie oapacity, cannot be 
■eiKed under process in a suit instituted again.sb him in this country on a cause of action 
arising hero. 

And, therefore, where a snit bad been brought in the Lord Mayor's Court against the Queen 
of Spain, upon bonds of the Spanish gOTemment bearing interest, payable* in London, and 
moneys, belonging to her as the sovereign of that country, had been attached in the hands of 
garnishees in London, to eompel her appearanoe^ the Coort of Qneen's Bench granted a 
prohibition. 

Although the action was not. In form, brought against the Queen as soTcreign : it appearing 
sofficiently by the proceedings that she was charged with liability in that eharaotar. 



17 ADOLPHUS & ELLIS. N. 8. 171 

The atme law preraila, i fortiori, whera the aotioo is avowedlj granted on aota done by tlie 

derendant in the character of Sovereign. 
The garnishee, in such a cnse, is a proper party to more for the prohibition. 
And it ia no objeotion* that he has put in a plea (Nil habet) to the attachment. 
Kor if the motion premature, if mnde after the pleading of such plea and before U'ial of the iesuef 

tbaagb no other excess of jari!>diction is imputed to the Lord Mayor's Court than its having 

entertained the suit 
The motion may alao be made hy the sovereign prince who ia defendant in the Mayor's Courts 

though 0nch defendant has not appeared, and ^e garnishee has not pleaded. 
The prohibition may go at the instance of a mere stranger. 

Lv the first of these cases, Chambers, on behalf of the a£|(er-mentioDed 
garnishees, moved, in last Easter term (April 15tb), that a prohibition 
might issue to The Lord Mayor*s Court of London, under circumatances 
disclosed in an affidavit sworn by Henry Treasure, Clerk to Messrs. 
Lawford, attorneys, and Joaquin Scheidnagel and George Stone^ 
garnishees in the suit Wadsworth v. The Queen of Spain, depending in 
the said Court. 

H. Treasure deposed : That he hath the conduct and management of 
a certain cause now pending in the Court of the Lord Mayor of the 
City of London, wherein one Thomas Page Wadsworth is the plaintiff, 
and Her Catholic Majesty Dofia Isabel Segunda, Queen of Spain w-^-^jq 
*(iu the said cause described as Her Most Christian Majesty ^ 
Dofia Isabel Segundar Queen of Spain) is defendant, and wherein the 
above-named deponent Joaquin Scheidnagel is garnishee, and also the 
above named deponent'^eorge Stone, together with John Martin, James 
Martin, and Robert Martin, are garnishees, in two certain attachments 
issaing out of the said Court. That the cause of action, as appears by 
an affidavit filed in the said Court by T. P. Wadsworth on 30th Decem- 
ber, 1850, ia for 10,000Z. sterling for interest alleged to be due to him 
from Her said Catholic Majesty upon certain bonds or certificates dated 
respectively the 10th December, 1834, and stated by Wadsworth to 
have been duly made and entered into by or on behalf of Her Majesty 
the then Queen Regent of Spain, in the name of her august daughter 
the said Donna Isabel, &c., the defendfint, by virtue of the law decreed 
by the Cortes and sanctioned by Her said Majesty the said Queen 
Regent in the name of her said daughter the Queen of Spain, on 16th 
November, 1884; and of the alleged treaty between the Minister, 
Secretary of State for the Finance department of Spain, and Mons. 
Ardoin, banker, of Paris, on 6th December, 1834. 

The deponent George Stone stnted that, on 30th December, 1850, he 

and his partners, JoJin Martin, James Martin, and Robert Martin, who, 

with deponent, carry bn business as bankers in the City of London, were 

^served with the following document, addressed to them and dated 

* December 80th, 1850. 

"Take notice that, by virtue of an action entered in the Lord 
Mayor's Courti Londoni against Her Most Christian Majesty Dofia 

l2 



172 WADSWORTH v. QUEEN OF SPAIN. T. T. 1851. 



^^.-o-i Isabel Segundar Qneen of *Spain, defendant, at the snit of 
■^ Thomas Page Wads worth, plaintiff, in a plea of debt npon de- 
mand of 20,0002., I do attach all such moneys, goods, and effects as yea 
now have, or which hereafter shall come into yoar hands or custody, of 
the said defendant, to answer the said plaintiff in the plea aforesaid : 
and that yoa are not to part with such moneys, goods, or effects without 
license of the said Court. Chas. Sewell, Serjeant at Mace. 

Geo. Ashley, plaintiff's attorney, Lord 
^ Mayor's Court Office, Old Jewry." 

Scheidnagel deposed that, on the same 80th December, he was served 
with a document, addressed to him, but in all other respects the same 
as that above set forth. That he is president of a Commission called 
the Spanish Financial Commission, which was appointed in 1834 by the 
Government of the kingdom of Spain for the management in England 
of the affairs relative to the public debt of the said kingdom, and for 
facilitating the payment of interest or dividends payable on account of 
the said kingdom to the holders in England of certain bonds or certifi- 
cates, and of other public securities issued by or on behalf of the said 
kingdom ; and that, as the president of the said Commission, he hath, 
for the purpose of paying in England the coupons or half-yearly divi- 
dends of the said bonds or certificates, from time to time received from 
the Director-general of the said kingdom of Spain, one of the ministers 
of the said Queen of Spain, divers large remittances ; and that the same 
have accordingly from time to time been applied to the purposes of such 
payments as and when the holders of the said bonds have presented to 
♦1 7dl ^^^ ^^^^ ^Commission the said coupons ; but that the holders of 
-' a large number thereof had not, at the time of the service of the 
said two attachments, presented such coupons, or in any other manner 
applied for payment of the dividends or interest in respect thereof; and 
the residue of the said moneys, amounting to 7456Z. 19«. 6d. or there- 
abouts, so remitted as aforesaid, and applicable to the payment of the 
same, have therefore remained under the control of the said CommiB- 
sion, awaiting the presentation of the said coupons, and, at the time of 
the service of the attachment, were in the hands of the said Jo. Martin, 
G. Stone, Jas. Martin, and R. Martin, as the bankers of the said 
Financial Commission: And that, some time previous to the days 
appointed for the payment of such respective half-yearly dividends or 
coupons, and subsequent to the receipt of the remittances for such 
respective payments, the said Financial Commission, in conformity with 
the directions given by the said Director-general of the said Kingdom 
of Spain, caused advertisements to be from time to time inserted in the^ 
English newspapers, naming the day on which such respective payments 
would be made of the interest due upon the said bonds : And that 
deponent had not, at the time of the service of the said attachments 



17 ADOLPHUS & ELLIS. N. 8. 274 

respectively, nor, as he verily believed, had the said Jo. Martin, O. 
Stone, Jas. Martin, and R. Martin, or either of them, in their possession 
or power any moneys, goods, and effects of the said Queen of Spain as 
her private property and nnconnected with the government of Her said 
Kingdom : And that Her said Catholic Majesty Doiia Isabel was, at the 
time of the commencement of the said action, and now is, the reigning 
Sovereign of the Kingdom of Spain, *and as such entitled to, ^^^-,^1- 
and then enjoyed and is now enjoying, all the rights, preroga- '- 
tives, and privileges appertaining to such sovereignty : And that the said 
bonds or certificates were made by the said then Queen Regent of 
Spain as aforesaid in her Sovereign character only, and for and solely 
on account of the said Kingdom of Spain, and as an act of state in the 
government thereof, and not for or in respect of any private or personal 
debt owing by the said Queen Regent, or by Her said Catholic Majesty 
Dofla Isabel, to the said T. P. Wadsworth : And that Her said Catholic 
Majesty was, at the time of the commencement of the said action, and 
now is, resident and domiciled within the Kingdom of Spain and out of 
the jurisdiction of this Honourable Court, owing no allegiance at any 
time to the Sovereign Lady Queen Victoria ; and that Her said Catholic 
Majesty Do8a Isabel is recognised and acknowledged by the said 
Sovereign Lady Queen Victoria as the now reigning Sovereign of the 
Kingdom of Spain ; and that the said last-mentioned Kingdom is at 
amity with the Crown of Great Britain and Ireland. 

The deponent H. Treasure further stated that the action in the Loyd 
Mayor's Court was commenced on 80th December, 1850 ; that Scheid- 
nagel pleaded to the attachment Nil habet, and the defendants Martins 
and Stone Nil habent ; but the issues had not yet been tried ; though 
deponent believed that Wadsworth intended proceeding to trial of the 
attachments as soon as the practice of the Lord Mayor's Court would 
allow, and, in the event of his obtaining a verdict, would sue out exe- 
cution to recover the moneys in the hands of the garnishees Martins 
and Stone, unless prohibited by this *Coart. He further de- r^nno 
posed : That he hath been advised and verily believes that, in ^ 
the event of the said T. P. Wadsworth proving upon the trials of the 
said attachments that the said garnishees respectively have moneys in 
their hands as aforesaid, he will be immediately afterwards entitled to 
sue out process to levy and take into execution the amount so proved 
to be in the hands of the garnishees respectively, unless special bail be 
given for Her said Catholic Majesty for the amount sought to be reco- 
vered by the said T. P. W. : That, on 29th January last, application 
, was made by counsel to the Recorder of the Lord Mayor's Court to 
dissolve the said attachments on common. bail being filed on behalf of 
the Queen of Spain, on the ground that a foreign independent Sove- 
reign could not be held to bail : but- the Recorder refused to dissolve 
the attachments; and the same now remain in full force : And deponent 



176 WADSWORTH v. QUEEN OP SPAIN. T. T. 1861. 

hath been advised, and verily believes, that, bj the laws and castoms 
of the City of London, no plea upon the trial of the said attachments 
oan be entered on the part of Her said Catholic Majesty the Queen of 
Spain, or demurrer or other proceeding tendered or put in by the gar- 
nishees, whereby the question of jurisdiction of the said Lord Mayor's 
Court to call upon Her said Catholio Majesty to answer the matters 
complained of by the said T. P. W. can be raised, or the power of the 
said Lord Mayor's Court to attach the said money of Her said Catholic 
Majesty questioned, nor can any steps be taken in the said Lord May- 
or's Court whereby the question of Her said Catholic Majesty's liability 
in respect of the alleged causes of action of the said T. P. W. can b« 
decided, unless special bail shall hare been first given on behalf of Her 
said Catholic Majesty. 

*1771 *Thc affidavit of H. Treasure verified a copy of Wadsworth's 
^ afiSdavit of debt in the cause, and copies of the record and pro- 
ceedings in the attachments, and of one of the bonds or certificates 
referred to in Wadsworth's affidavit. The bond or certificate was 
headed (so far as the terms are material) : 

" Public Debt of Spain. 
Great Book of Five per cent, 

the active debt. consols." 

A, translation of the body of the instrument was annexed to the copy, 
und was as follows : 

(« The bearer of this certificate is entitled to an annuity of ten hard 
dollars, equivalent to fifty-four francs or two pounds two shillings and 
six pence sterling, representing a capital of two hundred hard dollars, 
one thousand and eighty francs, or forty-two pounds ten shillings ster- 
ling, by virtue of the law decreed by the Cortes and sanctioned by Her 
Majesty the Queen Regent in the name of her august daughter Dofia 
Isabel II., the 16th November, 1834, and of the treaty concluded be- 
tween the Minister Secretary of State for the finance department, and 
M. Ardoin, banker, of Paris, the 6th December of the same year. 

The said annuity will be payable in Madrid, lliris, or London at the 
option of the bearer, half-yearly, on the 1st May and 1st November in 
each year, on presentation of the dividend warrant then due : in Paris 
at the rate of fivo f'rnncs forty centimes per hard dollar, a *••! in London 
at four shillings and three pence sterling, also per hard <iollar. 
*17R1 ^^^ bearer has the option of causing this certificate *to be 

« ^ definitively converted into an extract of inscription, payable in 
Madrid. 

To this certificate are attached forty dividend warrants. If at the 
end of twenty years it should not have been withdrawn from circulation 
either by means of redemption or of conversion into an extract of 
inscription, forty new dividend warrants shall be delivered on the pre- 



17 ADOLPHUS & ELLIS. N. S. 178 

fent&tion of this certificate with the dividend warrant preceding that 
which latest becomes due." 

The instrament was dated « Madrid, 10 December, 1834/' and pur- 
ported to be subscribed by The Secretary of State for foreign affairs, 
The Count Toreno, and by The Director of the Royal Sinking Fund 
(uEl Director de la Real Caja de Amortizacion") and of the Great 
Book, Ant^ Barata. 

The affidavit of debt was as follows. 

(« In the Mayor's Court, London. 
« Thomas Page Wadsworth, of No. 11 Down Street Piccadilly," 4c., 
<(maketh oath and saith: That Her Most Christian Majesty Dofia 
Isabel Segundar, Queen of Spain, is justly and truly indebted unto 
this deponent in the sum of 10,000Z. sterling and upwards for interest 
upon and by virtue of certain bonds or certificates, bearing date re- 
spectively the 10th day of December, 1884. and duly made,*' &c. (de- 
scribing them as at p. 172, ant^) : << And which said interest was due 
and payable on certain days now past. 
Sworn at the Lord Mayor's T. P. Wadsworth. 

Court Office, London, this 
30th day of December, 
1850. Before me,. G.Ashley." 

*The subsequent proceedings were: I'he declaration in the r^i^^q 
Lord Mayor's Court, whereby the plaintiff "demands against *• 
Her Most Christian Majesty Doiia Isabel Segundar, Queen of Spain, 
20,000/. of lawful money of Great Britain which she owes to and un- 
justly detains from the said plaintiff. For that, whereas the said de- 
fendant, on," &c., <'at the parish of St. Helen, London, and within 
the jurisdiction of this Court, for and in consideration of divers sums 
of money before that time due and owing from the said defendant to 
the said plaintiff at the parish aforesaid and within the jurisdiction 
aforesaid, and then being in arrea^ and unpaid, granted and agreed to 
pay to the said plaintiff the said sum of 20,0002. above demanded 
where and when she the said defendant should be thereunto afterwards 
required : Yet, notwithstanding, the said defendant, although often 
thereto requested, hath not yet paid to the said plaintiff the said sum 
of 20,000/. above demanded, or any part thereof. To the damage," &c. 

Then followed prayer of process by the plaintiff; award of summons 
calling on defendant to appear and answer ; return to the Court that 
defendant had nothing within the City or Liberties whereby she could 
be summoned, nor was to be found within the same ; non-appearance and 
default by defendant on being called at the same Court : allegation by 
plaintiff at the same Court that Scheidnagel owes defendant 10,000/. in 
moneys numbered, «< as the proper moneys of the said defendant," and 
now has and detains the same in bis hands and custody ; prayer of process 

TOL. XVII. — 17 



179 WADSWORTH v, QUEEN OP SPAIN. T. T. 1851. 

by plaintiff, to attach, &c. ; whereupon the Serjeant at Mace was eoni- 
manded by the Coart that he, according to the custom, &c., attach the 
*1801 ^^'^ defendant by the said 10,0002. so *being in the hands and 
-^ custody of the said garnishee as aforesaid, and the same in his 
hands and custody defend and keep, so that the said defendant may 
appear in this Court here to be holden, &c., to answer the said plaintiff 
in the pleii aforesaid; and that the said Serjeant at Mace return, &c.: 
appearance by plaintiff at a Court holden 13th January, 1851, and 
return by the Serjeant that he had attached defendant by the said 
10,0002. so being in the hands and custody of the said garnishee, and 
the same defended, &c., according to the custom, &c., so that defend- 
ant migkt appear at this Court to answer in the said plea : And that 
defendant thereupon was solemnly called at the same Court and did not 
appear, but made a first default, which was recorded, and a further day 
given to defendant to appear at the next Court, to be holden, &c. : 
similar defaults by defendant at three other Courts, plaintiff appearing: 
prayer of process by plaintiff, at the fourth Court, against the gar- 
nishee, and order by the Court, thereupon, that the Serjeant warn the 
garnishee to appear on 17th January to show cause why plaintiff onght 
not to have execution of the 10,0002. attached in garnishee's hands : 
appearance on the day named, and imparlance, by the garnishee, who, 
on a subsequent day, pleaded : 

That, at the time of making the said attachment, or at any time 
since, he had not owed to or detained from, or yet has, owes to or de- 
tains from, the said defendant named in the bill original and attach- 
ment aforesaid the said 10,0002. or any part thereof, in manner and 
form, &c. ; concluding to the country. 

Then followed a bill of proof by Thomas Paterson, of Liverpool, 
merchant, praying to be admitted to prove that the 10,0002. is his pro- 
*1»11 P^^^7' ^^^ probation by the ^same party, alleging that be 
-' claimed interest in the 10,0002. (parcel of the said 20,0002.), for 
that the same was received by the garnishee, and held by him, for and 
on account of the defendant ; and that, while the same was so held by 
the garnishee, a negotiation was pending between the approver and de- 
fendant for the supplying to defendant by the approver of certain large 
quantities of corn, to wit, forty ship loads : that, ultimately aiid before 
the said attachment, a contract was made and entered into by and be- 
tween the approver and defendant ; and, by the terms of such contract, 
the approver was to supply forty ship loads of corn to the defendant 
at the times and periods mentioned in such contract: That, on such 
contract being made, the approver required a sum of money from de- 
fendant on account of such shipments, to wit, 10,0002. : That defend- 
ant agreed to pay the said sum of money, and arranged that the same 
should be paid to the approver by remitting the same to Joaquin Scheid- 
nagel, the defendant's agent in London, being the garnishee in the said 



17 ADOLPHUS k ELLIS. N. S. 181 

tttochment, and then, at the time of the making the said contract and 
before the making the said attachment, gave the said approver an order 
to receive the said 10,0002. when paid to defendant's said agent in Lon- 
don, 80 being the garnishee as aforesaid, for the speci$c purpose of 
payiDg the same to the approver ; which order is dated long before the 
iflsoiDg the said attachment, to wit, on 2d November, 1850 : And that 
the said sum was so placed in the hands of the garnishee by defendant 
for the specific purpose of applying the same to the order above men- 
tiooed: Wherefore the approver claimed the said 10,0002., and he 
offered to verify the premises, and that the 10,000/. was his property, 
in manner, &c., as he had claimed: and *he prayed to be ad- r^-tna 
mitted to prove the same, according to the custom of the City. ^ 

There were also proceedings (similar to the earlier ones in the case 
of Scheidnagel) resulting in the attachment of 10,0002. in the hands of 
Martins and Stone ; warning to them to show cause, &c. ; plea by them 
that, at or since the time of the attachment, they had not owed to or 
detained from defendant the said 10,0002. or any part thereof, in man- 
ner, fcc, concluding to the country : bill of proof and probation by the 
laid Thomas Paterson, alleging facts as stated on the probation in 
Schiednagers case, as to the contract for corn, and demand by Pater- 
son of 10,0002. on account : And that the said defendant agreed to pay 
the said sum of money last mentioned, and arranged Ihat the same 
should be paid to the approver by remitting the said sum of 10,0002. 
to one Joaquin Scheidnagel, the defendant's agent in London, with 
directions to the said J. Scheidnagel to place the said sum in the hands 
of the garnishees named in the present attachment, to meet the pay- 
ment of the order after mentioned, and then, at the time of making the 
aforesaid contract, and before the makings of the said attachment, gave 
the said approver an order to receive the said 10,0002. when paid into 
the hands of the garnishees as aforesaid for the specific purpose of pay- 
ing the same to the approver; which said order is dated long before 
the issuing of the said attachment, to wit on 2d November, 1850 : That 
the said sum was so placed in the hands of the said garnishees by de- 
fendant through her agent for the specific purpose of applying the 
same to the payment of the order above mentioned : Wherefore the 
said approver claimed, &c. ; as before. 

^Chamben^ in moving, cited The Duke of Brunswick v. The King ^^^ ^^ 
of Hanover,(a) and contended that the sovereign prince of a foreign '- 
realm could not be sued in an action which required that she should put 
in special bail to answer in a court of this country for an act of state : and, 
eonsequently, that proceedings could not go on against the garnishees. 
[Lord Campbbll, 0. J. — ^Mnst there be an affidavit of debt, to com- 

(a) In the SoHf Court, 6 B«aT. 1. 8mb« v. Same la Dom. Proc. (deorte of RoUi Coort 
sftnMd), 2 Ho. Lordf Ca. 1. 



188 WADSWORTH v. QUEEN OF SPAIN. T. T. 1851. 

mence a sait in the Lord Mayor's Coort ?] Randall (with Chamberi^ 
— *There must, by the custom. 

A rule nisi was granted. In last Easter Term, (a) 

ffogffins, WeUhy^ and Locke showed caase.(() — The affidavits in sop- 
port of the rule show a case within the jurisdiction of the Lord Mayor's 
Court. No objection can be founded on the affidavit of debt, which is 
nnnecessaiPy, and no part of the proceedings in the Coort. (On this 
point Banks v. Self, 5 Taunt. 234 (note), and Hatton v. Isemonger, 1 
Stra. 641, were cited.) [Lord Gampbbll, C. J. — The affidavit is in- 
tended to show the cause of action. It seeks to be evidence against 
the plaintiff, as far as it goes, see p. 198, post.] The proceeding in 
question is against a garnishee according to the custom of foreign 
attachment. Assuming that in some stage of the case the Queen might 
interpose, and allege something to defeat the action, a prohibition can- 
♦1«41 ^^^ 8^' '^^^ l»oxA Mayor's *is the only Court which has joris- 
^ diction in this kind of proceeding ; and, if a prohibition lay under 
the present circumstances, the party complaining would have no remedy : 
for which reason privilege, of attorneys or others, is not allowed to oust 
the Court of jurisdiction .in foreign attachment; Turbill's Case, 1 Wms. 
Saund. 67, Gilb. Com. Pleas, 209, Ridge v. Hardcastle, 8 T. B. 417. 
The practice is fully set out in Bohun's Privilegia Londini, 253, et seq., 
8d ed. It is enough, for the purpose of instituting a foreign attach- 
ment, to show that the garnishee, being within the city, has funds of 
the defendant ; and, if the garnishee does not come in and establish 
anything that may discharge him, which the defendant also is at liberty 
to do, then, according to the certificate of the Becorder of London, 
cited in note (1) to Turbill's Csse, «« judgment shall be, that the plain- 
tiff shall have judgment agjiinst him" (the garnishee), *< and that he 
shall be quit against the other, after execution sued out by the plain- 
tiff." [Lord Campbell, C. J. — The garnishee's payment is tak.en to 
be a payment by the defendant. Patteson, J. — Surely the foundation 
of all this proceeding is a debt as to which the Court has jurisdiction 
over the defendant. As you argue, if there were funds in the city be- 
longing to the Queen of England, there might be an attachment against 
the garnishee.] In Banks v. Self, 5 Taunt. 234, note (E. C. L. B. 
Yol. 1), cited and acted upon in Harrington v. Macmorris, 5 Taunt. 228, 
the defendant pleaded a recovery against him as garnishee in a suit 
against the plaintiff, defendant being debtor to plaintiff at the time : 
and on demurrer it was objected that the suit against the now plaintiff 
*18^1 ^° ^^^ Court below was not shown to '^'have been brought for & 
^ debt arising within the jurisdiction : but the Court of Comraoa 
Pleas held this no valid objection, and gave judgment for the defendant. 

(a) May 10th. Before Lerd Campbell, C. J., Patteaon, Wigbtmaa, and Brie, Js. 
{h) Onmey attended on behalf of the oitj of London to watch the proeeedingi, lest the 
«f foreign atUohment eboold be SnfUnged upon. 



17 ADOLPHUS ft ELLIS. N. 8. 186 

[Lord Campbell, 0. J. — The question there was, whether it mast posi- 
tWely appear on the pleadings that the Court had jarisdiction : it was 
not said that the want of jurisdiction, if averred, might not have been 
an answer. Erle, J. — The decision is only that things done before a 
competent tribunal, are presumed to be rightly done.] In Self v. Een- 
nicot, 2 Show. 506, the defendant pleaded to debt on bond i* that the 
plaintiff being indebted to J. S. he made an attachment of the said 
money in his hands ;*' on demurreri one objection was, that << it doe^ 
not appear that the debt arose within the jurisdiction;" and it seem» 
that the plea was held good. [Lord Campbell, C. J. — The authority 
is a slender one for a wide proposition.] 

It is a well established rule that a prohibition shall not issue to a 
Court of peculiar jurisdiction, upon the apprehension merely that such 
Court will exceed its powers ; though the remedy may be grantable if 
it appear, in the course of the proceedings, that such an error is, or is 
about to be, committed. Among the cases laying down this principle, 
and showing its application, are Home v. Earl Camden,(a) Chesterton 
p. Farlar, 7 A. & E. 713 (E. G. L. R. vol. 84), Case of the Danish Ship 
Noysomhed, 7 Yes. 693, Johnson v. Shippen, 2 Ld. Raym. 982. The 
Court cannot, in the present case, see any particular in which the Lord 
Mayor's Court is ^exceeding its jurisdiction. Nothing has been r^^io/* 
done contrary to the due administration of justice. The bond ^ 
itseir is not made part of the record. It does not appear that any 
application has been made to the Lord Mayor's Court to stay proceed- 
ings in the suit because the Queen cannot be sued there. The present 
motion is qaia timet. If the objection is taken on the trial, the Judge 
of the Lord Mayor's Court will deal with it, and it may be brought 
before a Court of Error ; Horton v. Beckman, 6 T. R. 760, Clark v. 
Denton, 1 B. & Ad. 92 (E. C. L. R. vol. 20). [Lord Campbell, C. 
J. — The qaestion as to jurisdiction may arise on facts not necessarily 
appearing by the record.] That might be so ; as in Day v. Paupierre, 
13 Q. B. 802 (E. C. L. R. vol. 66). The subject-matter of this suit 
being within the jurisdiction of the Court on a concessit solvere, the 
proper mode of defence on the part of the Queen would have been to 
appear and put in a plea. The defence, that the borrowing was an act 
of state, would have been fully available in that form, and would, it 
must be presumed, have been properly disposed of by the Court. At 
present, this Court cannot say, on looking at the bond or certificate 
sued upon, that it may not be ground for an action against the Queen 
personally. What the law on that subject was, in the particular case, 
would depend on the evidence. [Erlb, J. — The instrument itself in- 
forms the bearer that it is made by virtue of a law decreed by the 
Cortes and sanctioned by the Queen Regent, and of a treaty concluded 

(a) In Dom. Proo. 2 H. Bl. 533, affirming the judgment of K. B. in Lord Camden «. Hom«^ 
4 T. R. 382, which rereraed the jadgment of Oom. PL in Home v. Earl Camden, 1 H. BL 476 

M 



188 WADSWORTH ». QUEEN OF SPAIN. T. T. 1861. 

bj the Secretary of State. Suppose the plaintiff on his affidavit showed 
expressly that he coald have no right in an action against the Queen 
individually : would the Lord Mayor's Court still be entitled to pro 
*1H71 ^^^^^ Suppose he made *it appear that his demand was like 

-* that made against the Queen of England in the Baron de Bode*8 
Case, 8 Q. B. 208 (E. G. L. R. vol. 55),(a) where the grounds alleged 
were, to the understanding of any person acquainted with the law, a 
direct disaffirmance of the claim.] It would still be matter of inquiry, 
on the trial, what the facta were. The instrument primfi facie creates 
a liability in London. 

But, further, the garnishees here have taken issue on a fact concern- 
ing themselves exclusively; that they have not the money in their 
hands. After this, they cannot set up another answer, which regards 
the defendant only. [Lord Campbell, C. J. — They have an interest 
in it, because, if the Court has no jurisdiction, they are discharged.] 
The course on an attachment is thus decribed in Bohun's Privilegia, p. 
256. <« The garnishee, if he think fit, may appear in Court by his 
attorney, and wage law, or plead, that he has no maney in his hands of 
the defendants, or other 'Special matter, or he may confess it." Bat, 
« if the plaintiff in the attachment shall obtain a verdict and judgment 
for the money or goods attached in the garnishee's hands, yet the 
defendant in the attachment may at any time before satisfaction acknow- 
ledged upon record, put in bail to the plaintiff's action upon which the 
attachment is grounded, and thereby discharge the judgment and pro* 
oeedings against the garnishee ; yea, though the garnishee be taken 
in execution, he shall be discharged if bail be put in as aforesaid.*' 
[Lord Campbell, C. J. — Would not it be special matter pleadable by 
the garnishee, that the defendant is a person over whom the Court has 
^-incy^ no jurisdiction?] There is no precedent of *such a plea: and, 

•^ at all events, the time for it has been let pass. [Erlb, J. — It is 
not always true that a party who was entitled to object to the jurisdic- 
tion, but has allowed the cause to be tried on the other matters in dis- 
pute, cannot afterwards have a prohibition. The contrary has been held 
on prohibition to a County Court, where title had come in question.] 
In Thompson v. Ingham, 14 Q. B. 710 (E. C. L. R. vol. 68), which was 
such a case, the question of jurisdiction had been raised at the proper 
time in the County Court. [Lord Campbbll, C. J.— ^Do you allow that 
the garnishee might move for a prohibition before plea pleaded ?] He 
might ; but not after he has put in a plea which admits the jurisdiction. 
An Anonymous case in 1 Yentris 236 agrees with this view ; and In re 
Jones and James, 1 Lowndes, M. & P. 65, is a direct authority on the 
point. [Erlb, J. — My opinion in that case must be taken to have been 
reviewed and found wrong.] 

As to the principal question : the case is, that the defendant has 

(a) Baron de Bode v. The Qaeen, 13 Q. B. 3S0 (E. C. L. B. toL 66). 



17 ADOLPHUS ft ELLIS. N. S. 188 

rabed money within the jarisdiction of the Lord Mayor's Court by bonds 
bearing an interest payable in London. Nothing appears that can 
legally distinguish the funds attached from the Queen's own funds. She 
appears to have the control of them all. In The Duke of Brunswick 
V. The King of Hanover, 2 H. Lords Ga. l,(a) cited in moving for this 
rule, it was held that a foreign prince, being in this country, could not 
be made amenable to the Court of Chancery for acts done in exercise 
of his sovereign authority : but those acts were done in his own domi* 
nions ; a circumstance particularly noticed by Lord Gottenham in his 
address to the Hous£ *of Lords. In the same case, at the Rolls, r^i^Q 
Lord Langdale, after observing that «< The law of England affords ^ 
no authority for the proposition, that sovereign princes resident here 
may not be sued in the Courts here," cites De la Torre v. Bernales, 1 
Hov. Supp. to Vesey, 149, where. Vice-Chancellor Sir J. Leach ordered 
the King of Spain to be named as party to a suit the object of which 
was to charge Bernales in respect of acts done by him as the King's 
agent, and (« laid it down, that a foreign government, or sovereign, could 
both sue and be sued in the Courts of this country.'* [Lord Campbell, 
C. J. — The act in question here was not done by the Queen personally. 
Oat by her mother, while regent.] A person raises money in London 
for the Queen of Spain. [Lord Campbell, C. J. — The instrument it 
not signed by her, but by a public oflScer ; like our Exchequer bills.] It 
is not necessary that the Queen should have actually put her own seal 
(0 the bond, to render her liable. AflBdavit is made in the cause that 
dhe is the party indebted. It appears that the Cortes have authorized 
her to borrow money ; but this Court cannot judge of the nature and 
effect of that authority. Before the reign of Edward I., the King, even 
of this country, might have been sued in the Courts.(i) Since the pro- 
ceeding by petition of right was instituted, that is no longer so ; but a 
foreign prince may still be sued, at least upon engagements entered into 
here. [Patteson, J. — The liability of a foreign prince upon acts done 
in his own dominions came into question in Munden v, Duke of Bruns- 
wick, 10 Q.'B. 656 (E. C. L. R. vol. 59) ; but there was no decision on 
the point.] 

*Chamber$j Peacock^ and Randell^ contri. — The suit has r<,^QA 
arrived at this point : the garnishees having pleaded, issues have ^ 
been joined upon the pleas, and now stand for trial, the result of which, 
if the pleas be not proved, will be that execution will go against the 
moneys of the defendant, unless she put in bail within a year and a 
day to appear and try in the Lord Mayor's Court. The questions are, 
whether prohibition lies, and whether it is now properly applied for. 
Now the rule is, that a prohibition will be granted whenever the Supe- 
rior Court can see that the Court below has exceeded its jurisdiction. 

(a) S. C. in the RoUa Court, 6 BeaT. 1. 

(6) 8«« 16 Yin. Abr. 536, Ut Prero^iv o/cA« Kimg, (Q. 4). 



190 WADSWORTH c, QUEKN OP SPAIN- T. T. 1851. 

And (assatning that the garnishees here are not entitled as parties to 
demand it) the prohibition may issae even at the instance of a stranger; 
a rule founded not only in justice to the subject but in a jealous regard 
to the prerogative of the Crown : for «« there are two things in prohi- 
bition, 1st contempt of the Crown, and disherison of it in taking on 
them judicial power where they have no right ; 2d is a damage to the 
party;" Ede.v. Jackson, Fortesc. 345. ««And the King's Courts that 
may award prohibitions, being informed either by the parties them- 
selves, or by any stranger, that any Court temporal or ecclesiastical 
doth hold plea of that whereof they have not jurisdiction, may law- 
fully prohibit the same, as well after judgment and execution as before;" 
2 Inst. 602. The rule on this subject has been exemplified in the late 
decisions as to the County Courts. [Lord Campbell, C. J. — Those 
cases, as well as Home v. Earl Camden, 2 H. Bl. 533, 4 T. R. 382, 1 
H. Bl. 476, seem to press you a good deal.] In Home v. Earl Camden, 
*1Q11 ^^^ Court of Appeals in cases of prise, to which the ^prohibition 
^ went, had exclusive jurisdiction over the matter which they had 
decided, namely, whether a certain capture was prize or not within the 
pri^e Acts then in force : and therefore prohibition was held not to lie. 
But, if they had been exceeding the bounds of the common law in con- 
struing the Acts, they might have been prohibited, even after sentence^ 
according to Gare v. Gapper, 3 East, 472, and Gould v. Gapper, 5 East, 
345, and other authorities. Therefore the garnishees here are not 
barred by having pleaded. The principle (acted upon in Hall v. Made, 
7 A. & E. 721 (E. C. L. B. vol. 34)), that a Court should not be pre- 
sumed likely to exceed its jurisdiction, does not apply when the Court 
has entertained a suit of which, originally, it ought not to have taken 
cognisance. Now, in the present case, the Queen, the defendant in 
the suit, has never been summoned. It is not pretended that she has : 
but it is assumed that, because the debt arose, as it is said, within the 
jurisdiction, and nothing is found therein by which the defendant can 
be summoned, and the defendant herself is not to be found there, a 
summons may, by custom, be supposed. But, if it wa# impossible, 
legally, that the Queen could be summoned, a summons cannot be sup- 
posed ; and it was held in a case from the Tolzey Court of Bristol, 
Bruce v. Wait, 1 Man. & G. 1 (E. C. L. R. vol. 39), that, on general 
principles, a custom to issue foreign attachment without summons would 
be bad. [Lord Campbell, C. J. — The principle relied upon is, that a 
debt within the jurisdiction gives authority to the Court, though the 
debtor lives out of the jurisdiction. The law is so in Scotland.] It 
ought at least to be possible that the debtor should have the opporta- 
*iq>7i "'^7 ^^ appearing. ^Buchanan v. Rucker, 1 Camp. 63, 9 East, 
'^^ 192, is another authority against the suggested custom. [Lord 
Campbell, C. J. — What is there to show that a personal service ought 
to be practicable ?] It is at least requisite that, if a summons were 



17 ADOLPHUS k ELLIS. N. 8. 192 

served, the summons should have force to compel the party to dome in. 
The present case differs from others inasmuch as the defendant always 
was, and must be, out of the jurisdiction. This is not an objection which 
can be waived by pleading, in the case of a garnishee,, more than if it 
were that of an ambassador. Lord [Campbell, C* J> — One difficulty 
you have is, that there are, as it seems, cases in which a foreign prince 
may be sued, and the Court below may be proceeding to decide, but 
not wrongly, as to this being one of them.] The assumption, that this 
is such a case, should be sustained by those who allege the jurisdiction : 
bat the contrary appears from the affidavits, the bonds, and the pro- 
oeedings in the suit. 

Then, has the Lord Mayor's Court any jurisdiction, for the purpose 
of a suit, over a Queen of Spain resident in her own dominions ? In 
Douglas V. Forrest, 4 Bing. 686, 702, 8 (E. C. L. R. vol 18, 15), Best, 
C- J., said that «« a natural born subject of any country, quitting that 
oountry, but leaving property under the protection of its law, even 
daring his absence, owes obedience to ihose laws, particularly when 
those laws enforce a moral obligation :'* but he distinguished such a 
ease from Buchanan v. Rucker ; and he added : « To be sure if attach- 
ments issued against persons who never were within the jurisdiction of 
the Court issuing them, could be supported and enforced in the country 
in which the person attached resided, the legislature of '^'any t^^qq 
country might authorize their Courts to decide on the rights of *- 
parties who owed no allegiance to the government of such country, and 
were under no obligation to attend to its Courts, or obey its laws. 
We confine our judgment to a case where the party owed allegiance to 
the country in which the judgment was so given against him.'* In the 
present case, the consequence of a finding against the garnishees will 
be, that the party holding 10,0002. which is the money of the Spanish 
govornment will be unable to say that it is so till the Queen puts in 
bail ; a step by which she would acknowledge the jurisdiction of the 
' Court. If the proceedings in this case are valid, a ship of war belong- 
y ing to tiie Queen of Spain might be attached ; an act which might lead 
to disastrous public consequences. This evil was pointed out by Lord 
Langdale in the Duke of Brunswick v. The King of Hanover, 6 Beav. 
1, where his Lordship observed : <« The cases which we have upon this 
point go no further than this ; that where a foreign sovereign files a 
bill, or prosecutes an action in this country, he may be made a defend- 
ant to a cross bill or T>ill of discovery in the nature of a defence to the 
proceeding, which the foreign sovereign has himself adopted. There 
is no case to show that, because he may be plaintiff in the Courts of 
this country for one matter, he may therefore be made a defendant in 
the Courts of this country for another and quite a distinct matter :" 
and he added : (a) <« The defendant insists upon it as a general rnloi 

(a) 6 Bear. 40. 
VOL. XVII. — 18 M 2 



198 WADSWORTH v. QUEBN OP SPAIN. T. T. 1861. 

that in times of peace at least, a sovereign prince is, by the law of 
nations, inviolable ; that obvious inconveniences and the greatest danger 
of war would ^arise, from any attempt to compel obedience to 



*194] 



any process or order of any Court, by any proceeding against 



either the person or the property of a sovereign prince ; and indeed 
that any such attempt would be deemed a hostile aggression, not only 
against the sovereign prince himself, but also against the state and 
people of which he is the sovereign : that it is the policy of the law 
(to be everywhere taken notice of), that such risks ought to be avoided :** 
to which propositions his Lordship's judgment conformed. [Lord 
Campbell, C. J. — There may in any country be private property of a 
foreign prince, to which these remarks would not apply.] Lord Lynd- 
hurst said, in The Duke of Brunswick v. The King of Hanover, 2 Ho. 
Lords Ca. 23, in the House of Lords, that it was unnecessary there to 
define the circumstances (admitting that such might exist) under which 
a foreign sovereign might be sued here for acts done abroad : but he 
said : «^ It must be a very particular case indeed, even if any such case 
could exist, that would justify us in interfering with a foreign sove- 
reign in our Courts.*' And Lord Brougham said: «It would have 
been necessary where two foreign princes came to the Courts of this 
country respecting a matter transacted abroad, to have disclosed such 
a case as would have shown clearly that it was upon a private matter, 
and that they were acting as private individuals, so as to give the 
Courts in this country jurisdiction." The process (a) here is to attach 
(( air* «( moneys, goods, and effects" of the defendant without reference 
to their being public or private. If the property to be taken was pri- 
*1Q^1 ^-^^^' ^^^^ distinction should have been pointed at in '^all the 
•^ proceedings. [Lord Campbell, C. J. — ^You say, assuming this 
to be a private debt, the attachment is such that public property may 
be taken for that private debt.] That is so ; and the proceeding, if 
upheld, violates the law of nations. To that law Lord Mansfield, in 
Triquet v. Bath, 8 Burr. 1478, 1480, refers the privilege of foreign 
ambassadors and their servants against arrest ; and he notices the inci- 
dent of a statute, 7 Ai|n. c. 12, having been passed, in consequence of 
the Czar's ambassador being arrested. But in that case, he adds, *< U 
proper application had been immediately made for his discharge from 
the arrest, the matter might and doubtless would have been set right. 
Instead of that, bail was put in, before any complaint was made." 
Here, the erroneous course of putting in bail is declined, and applica- 
tion is made directly to the Court. 

The power of Courts of justice to enforce process against a foreign 
state or its debtor has been lately discussed in Ffftnce. {Chamben 
cited a printed memorial addressed to the Court of Cassation, entitled 
i^MSmoire pour M. le Miniatre de$ Finances d'Hspagney reprSsentant 

{a) Ante pp. 17S, 3. 



17 ADOLPHUS k ELLIS. N. S. 195 

rstat Enpagnoly centre Le Sieur Ca$auxj liquidateur de la maison Lam* 
bige et Pujoly de Bayanne:*' PariSy 1846; in which some decisions, 
stated to have taken place in French Conrts, are relied apon : and he 
read extracts from Yattel's Law of Nations, B. 2, c. 8, sects; 85, 89, 
and same work, Preliminarie9y sects. 15, 16. [Lord Campbell, C. J.— - 
These are general dicta, which cannot much affect the argument.]) 

Our, adv. vuU. 

*In De Haber tr. The Queen of Portugal Sir F, Thuiger^ in r^^qVj 
last term (April 16th), obtained a rule calling on the Mayor and *- 
Aldermen of the city of London, upon notice of the rule, to be given 
to the Registrar, or his deputy, of the Court after mentioned, and on 
Maurice De Haber, upon notice, &c., to show cause why a writ of pro- 
hibition should not issue to the Court, &c., called The Lord Mayor's 
Court of London, to prohibit the said Court, and also the said Mayor 
and aldermen, from holding plea or further proceeding in the action 
entered in the said Lord Mayor's Court by the said M. de Haber 
against Her most faithful Majesty Dofla Maria da Gloria, Queen of 
Portugal; therein described as << Her most faithful Majesty Dofia Maria 
da Gloria, Queen of Portugal, as reigning Sovereign and supreme Head 
of the nation of Portugal ;" and from further proceeding with two 
foreign attachments issued out of the said Court in the said action, and 
made in the hands of Senhor Quilherne Candida Xavier de Brito and 
Messrs. William Miller Christy, George Holgate Forster, George 
Scholefield, William Shadbolt, John Timothy Ozley, and- George Tay- 
ler, respectively ; and to restrain M. De Haber from further proceed* 
ing with the same or either of them. 

The rule was obtained upon an affidavit, in which it was deposed 
that, on 5th of July, 1850, Maurice De Haber entered an action ' in 
the Mayor's Court of London against Her most faithful Majesty Dofla 
Maria da Gloria, Queen of Portugal, and issued an attachment yd the 
same Court against the moneys, &c., which were or should come into 
the hands of Senhor Guilherne Candida Xavier de Brito. The depo- 
nent stated that he had been '^informed and believed «<that the r^igir 
claim of the said Maurice De Haber against her said most faith- ^ 
fal Majesty (if any such he has) arises for money equivalent in sterling 
money to the sum of 12,1862., or thereabouts, which the said Maurice 
De Haber alleged that he had in the hands of one Francisco Ferreiri 
of Lisbon in the kingdom of Portugal, banker, at the period when Don 
Miguel was driven out of Portugal ; and which was, by the said Fran* 
Cisco Ferreiri, paid over to the Government of Portugal under the 
decree of some Court in Portugal ;" and << that the cause of action (if 
any there be) arose in the kingdom of Portugal, and not within the 
mty of London." On this attachment the garnishee obtained a ver- 
dict and judgment in the Mayor's Court.(a) On 28th March, 1851, 

(a) See pp. 308, 9, pMt. 



197 DE HABER v. QUEEN OF PORTUGAL. T. T. 1851. 

De Haber entered another action in the same Court against «<Her 
most faithful Majesty Dofia Maria da Gloria, Queen of Portugal, as 
reigning Sovereign and as supreme head of the nation of Portugal ;" 
and, on the same day, issued an attachment in the same Court against 
the moneys, &c., which were or should come into the hands of De 
Brito. The attachment issued. on an affidavit, sworn by De Haber in 
the Mayor's Court, wherein he deposed : «< that Her most faithful Ma- 
jesty Dofla Maria da Gloria, Queen of Portugal, as reigning Sovereign 
and as supreme head of the nation of Portugal, is justly and truly in- 
debted to him, this deponent, in the sum of 12,136{. for money had and 
received by Her said Majesty Dofia Maria da Gloria, Queen of Portu- 
gal, for and on behalf of the said nation of Portugal, for the use of 
^^Qt^-j this deponent, '^and for money taken by Her said Majesty Doiia 
^ Maria da Gloria, Queen of Portugal, by and on behalf of the 
said nation of Portugal, from this deponent's banker; with interest 
thereon." 

The notice of attachment (a) to De Brito referred to the action, de- 
scribing the defendant and her character as in the last-mentioned affi- 
davit, and attached all such moneys, &c., as the garnishee then bad, or 
which might thereafter come into his hands or custody, «< of the said 
defendant, to answer the said plaintiff in the plea aforesaid." 

The affidavit on which the present rule was obtiiined further stated 
that' deponent had been informed and believed that the last-mentioned 
claim of De Haber arose upon the same cause of action as that in the 
first action ; and it repeated, as to this last action, the facts already 
mentioned to have been deposed to as to the first. 

The affidavit also stated that another attachment issued in each ac- 
tion against Christy, Forster, Scholefield, Shadbolt, Oxley, and Tayler, 
the trustees of The London Joint Stock Bank, as to which the circum- 
stances did not differ from those of the attachments first mentioned* 

In answer, on the part of De Haber, an affidavit by the Deputy 
Registrar of the Mayor's Court was put in, which stated the custom 
of London as to foreign attachments. It stated, further, that the affi- 
davit on which the Mayor's Court granted the attachment << is not con- 
sidered in the nature of an affidavit to hold to bail, and is not tested 
by the rules applicable to such affidavits, but is taken as a protection 
*1QQ1 ^^ ^^^ Court Mid suitors, *that no attachment should be made 
^ without any real debt existing between the plaintiff and defend- 
ant; and that such affidavit forms no part of the issue between the 
plaintiff and garnishee." <<That, if upon such affidavit there should 
appear any patent defect in the statement or consideration of the plain- 
tiff's debt, or such a debt as will not sustain any attachment, the Court 
will permit a motion to be made to dissolve the attachm^ent upon such 
grounds : but such defect must appear upon the face of such affidavit ; 

(a) Set oat at loBftk in the jiidfmeBt» poft» p. 206. 



17 ADOLPHUS & ELLIS. K. S. 199 

and the practiee has been not to allow any question affecting merits to 
be entered into upon sach sammary proceeding; but that the said gar- 
nishee may, at any time, make an application to the Court to dissolve 
an attachment on special grounds. That no plea upon the trial of an 
attachment can be entered on behalf of a defendant, because such de- 
fendant is not in Court and therefore cannot be a party to the issue ; 
bat, under the garnishee's usual plea of Nil habet, the Court is accus- 
tomed to give great latitude to all defences : but that the garnishee is 
not restricted to such plea, but may plead any special matter." 
In last Easter Term. (a) 

Borthufiekj for De Haber, showed cause. — It is true that a foreign 
sovereign, sued in respect of transactions entered into exclusively in 
the character of sovereign, cannot be compelled to appear in an Eng- 
lish Court of justice. But the privilege may be waived; and it is 
waived if it is not properly pleaded. That clearly ^appears from r^nf\{\ 
Lord Langdale's judgment in The Duke of Brunswick v. The ^ 
King of Hanover, 6 Beav. 1.(6) The case is somewhat analogous to 
that of an action brought against the governor of a foreign possession 
of the Crown for an act done in such foreign possession ; the governor, 
if he insists upon his right to do the act in his character of governor, 
must plead the matter speciltlly; Mostyn v. Fabrigas, 1 Cowp. 161, 
172, S.(e) The Queen of Portugal, by not pleading to the jurisdiction, 
has submitted to it. But, further, the present question is not between 
the plaintiff and the Queen of Portugal, but between the plaintiff and 
the garnishee. The defendant cannot have a prohibition, for want of 
jurisdiction, before appearing in the inferior Court ; and the garnishee, 
to take advantage of the objection, should plead it there ; Cook v. Li- 
cence, 1 Ld. Raym. 846, 6 Bac. Abr. 589, (7th ed.) tit. Prohibition (K). 
The prohibition will then go, if the inferior Court refuse the plea so as 
to show unequivocally an intention to exceed the jurisdiction. If the 
garnishee had pleaded only Nil habet, the Lord Mayor's Court would 
unquestionably have had the' right to try an issue on that plea. He 
might have pleaded to the jurisdiction ; for he can plead whatever the 
defendant can ; Masters v. Lewis, 1 Ld. Raym. 56. Even if the Queen 
of this realm had chosen, as she might, to sue as an individual, (eQ she 
must have answered to a bill of discovery touching the matter of the 
suit. Where an objection is taken to the jurisdiction- *of a county r^toA-i 
court, the party becomes entitled to the writ of prohibition by ^ 
appearing and showing the matter before the judge, who, if he then 
proceed, may be prohibited ; Thompson v. Ingham, 14 Q. B. 710 (E. C. 
L. R. vol. 68). How can the plaintiff here know in what character the 
Queen of Portugal opposes the attachment ? [Lord Campbell, C. J.~- 

(a) M*7 10th, 1851. Before Lord CunpbeU, C. J., Patteeon, Wightmfta, ftod Brie, Ji. 
(6) In the Rolls. 8. C.» in Dom. Proc., affirmini^ the ftbore deoree^ 2 H. L. Ca. I. 
(e) See notei to 8. C. in 1 Smith's Lead. Ca. 863, 888 b, e. (8d ed). 
{d) B— 16 Yin. Abr. 536, tit PrwrogaHw€ ofik% King (Q. 4). 



201 DB HABER v, QUEEN OP PORTUGAL. T. T. 1851. 

Your affidavit in the Lord Mayor's Conrt, upon which your attachment 
is founded, states that she is sued as reigning Sovereign of Portugal.] 
That is not properly before the Court; nor is the affidavit really the 
foundation of the attachment : it is merely required to protect the 
Court below from acting on a frivolous suggestion. The fact of the oath 
need not be averred in a plea of foreign attachment ; Banks v. Self.(a) 
There is at least enough doubt to induce the Court not to prohibit with- 
out requiring a declaration in prohibition. 

Sir F. Thenger and Bovill^ for the Queen of Portugal, oontriL.— 
This is a stronger case than Wadsworth v. Queen of Spain, ^nte, p. 
171, because it appears that here the original cause of action arose en- 
tirely in Portugal ; the money, in respect of which the plaintiff sues, 
never was in England. [Lord Campbell, C. J. — The fund attached 
would appear to belong to the Queen of Portugal in the same character 
as that in which she is a debtor, if at all.] That is undoubtedly so. 
Assuming, on the grounds urged in Wadsworth v. Queen of Spain, that 
the action does not lie against the Queen of Portugal, it does appear 
that the Lord Mayor's Court has ^exceeded its jurisdiction. The 



*202] 



object of the afttachment is to compel a purty to appear in a cause 



which is not within the competence of that Court. It is said that the 
garnishee ought to have pleaded to the jurisdiction : but, even if that 
were so, the Court will not, on account of his not having so pleaded, 
allow this action to go on against the Queen of Portugal. And, further, 
he was not bound to plead to the jurisdiction : as regards himself, the 
only question is whether he is indebted to the defendant : he may be 
entirely ignorant of the nature of the plaintiflTs claim on the defendant. 
It may be questionable whether the dictum in Masters v. Lewis, 1 Ld. 
Raym. 5C, be correct, that <« garnishment cannot be, but where the 
garnishee is liable to the action of the defendant ; for the garnishee 
may plead all things that the defendant might have pleaded." [Lord 
Campbell, C. J. — It is the dictum of no less a Judge than Lord Holt. 
WiOHTMAN, J. — And it seems very reasonable. Lord Campbbll, C. J. — 
The garnishee may in some cases know what the plaintiff's claim is. 
WiOHTMAN J. — It is said that the garnishee may plead that he has no 
money of defendant in hand, « or other special matter "{bj] Supposing 
him to have that right, his abstaining from the exercise of it cannot 
oust the original debtor from the right of denying the jurisdiction. 
Again, the Court, even on the suggestion of a stranger, will prohibit 
the inferior Court from exceeding its jurisdiction ; Com. Dig. ProhHri- 
tton, (E), 2 Inst. 707. It is true that, in ordinary cases, a party sued 
appears, before applying for a prohibition ; Sparks v. Wood, 6 Mod. 146: 
and a plea to the jurisdiction may be generally proper ; Lucking v. 

(a) Note to Harington 9, MMmorrii, 5 Taunt S84 

(b) Bohnn's PriTUegia Londini, 266 (Sd ad.). 



17 ADOLPHUS ft ELLIS. N. 8. 202 



Denning, 1 Salk. 201 : but an ^appearance and plea would be 



[*208 



aUord and contradictory in the present case, where the objec- 
tion is that the defendant cannot be called upon to appear at all. In a 
plea to the jurisdiction, the defendant mast appear in person ; 6 Bac. 
Abr. 235 (7th ed.), tit. PUoi and Pleadings (E) 2 ; now, where the party 
is not bound to appear, this Court will prohibit the enforcing process to 
compel appearance; Yaughan^v. Evans, 2 Ld. Raym. 1408. It is true 
that, by instituting proceedings in an English Court, the Queen of Por- 
tngal might make herself liable to answer a bill relating to those pro- 
ceedings : even so, however, she would not be liable to answer another 
party in a different matter ; The Duke of Brunswick v. The King of 
Hanover, 6 Beav. 1, 88 ; S. C. 2 H. L. Ca. 1. But, iji fact, she has 
never been a party to this proceeding at all. The privilege of a for 
eign sovereign, like that of ambassadors, rests on the law of nations : 
Stat. 7 Ann. c. 12, was only declaratory, and was passed to conciliate 
the Czar; Triquet v. Bath, 3 Burr. 1478, 1480. Suppose the Queen 
instituted proceedings against the garnishee in Portugal for the debt : 
could he set up the English attachment as a defence 7 [Lord Camp- 
BJBLL, C. J. — That is a question which we cannot" answer.] 

Lord Campbell, C. J. — We will take time to consider our judgment, 
fiat, without prejudice to any point which has been argued in this case, 
I must express very great regret that the action should have been 
brought. I have no hesitation in saying that such actions do not lie ; 
and I am very ^orry to find that this has been persisted in. The only 
qaestion is as to *the proper mode of stopping it, whether by a ri^o^j 
plea in the Court below or by prohibition. Our. adv. vtdt. ^ 

Lord Campbell, C. J., in this term (May 28th), delivered the judg- 
ment of the Court in both cases. 

DE HABER t^. The QUEEN OF PORTUGAL. 

We are of opinion that the rule for a prohibition in this case ought to 
be made absolute. 

The plaintiff has commenced an action of debt in the Court of the 
Lord Mayor of London against «<^^r most faithful Majesty Dofia 
Maria da Gloria, Queen of Portugal, as reigning Sovereign and supreme 
head of the nation of Portugal :" and, by an aflSdavit laid before us, it 
appears that the plaintiff's alleged cause of action is in respect of a sum 
of Portuguese money equivalent to 12,1362. sterling, which he had in 
the hands of one Francisco Ferreiri of Lisbon, banker, at the period 
when Don Miguel, pretending to the Crown of Portugal, was driven out 
of that country, and which was by the said Francisco Ferreiri paid over 
to the Portuguese (Government now represented by the royal defendant. 
The plaintiff, having entered his plaint, proceeded according to the 
custom of foreign attachment in the city of London, as if the defendant 



*205] 



204 DE HABER v. QUEEN OF PORTUGAL. T. T. 1861. 

were subject to the jarisdiction of the Lord Mayor's Court and the caiue 
of action had arisen within that jurisdiction ; and he sued out a som* 
mons for the defendant to appear and answer the plaintiff in the plea 
aforesaid. A return being made bj the Serjeant at Mace, that the said 
defendant had nothing within the said city or liberties thereof, wherebj 
*she can be summoned, nor was to be found within the same,(a) 
the plaintiff swore an aflSdavit, in which he stated that the defend- 
ant, «as reigning Sovereign and as supreme head of the nation of 
Portugal, is justly and truly indebted to him" <<in the sum of 12,136{., 
for money had and received by her said Majesty, Dofia Maria da Gloria, 
Queen of Portugal, for and on behalf of the said nation of Portugal, for 
the use of thi^ deponent, and for money taken by Her said Majesty 
Doiia Maria da Gloria, Queen of Portugal, by and on behalf of the said 
nation of Portugal, from the deponent's banker, with interest thereon." 
The defendant being solemnly called, and not appearing before the 
Lord Mayor, the plaintiff alleged, by his attorney, that Senhor Gail- 
heme Candida Xavier De Brito, of the city of London, the garnishee, 
had money, goods, and effects of the defendant in his hands, and prayed 
process according to tfie said custom to attach the said defendant by the 
said money, goods, and effects in the hands of the garnishee as afore- 
said, so that the defendant may appear in the Lord Mayor's Court to 
answer the plaintiff in the plea aforesaid. Thereupon the Judge pre- 
siding in the Court awarded an attachment against the defendant as 
prayed, directed to the Serjeant at mace, which that officer immediately 
executed, leaving with the garnishee a notice in the terms following. 

" Senhor Guilherne Candida Xavier De Brito. 28th March, 1851. 
*90fil * *Take notice that, by virtue of an action entered in the Lord 
^ Mayor's Court, London, against Her most faithful Majesty Dofia 
Maria da Gloria, Queen of Portugal, as reigning Sovereign and as 
supreme head of the nation of Portugal, defendant, at the suit of 
Maurice de Haber, plaintiff, in a plea of a debt upon demand of 24,000/., 
I do attach all such moneys, goods, and effects as you now have, or which 
hereafter shall come into your hands or custody, of the said defendant, 
to answer the said plaintiff in th« plea aforesaid : And that you are not 
to part with such moneys, goods, or effects without license of the said 
Court. G. T. R. Rbynal, plaintiff's attorney, 

Lord Mayor's Court Office, Old Jewry. 
J. Z. GoRB, Serjeant at Mace." 

On the second day of Easter term this rule for a prohibition 'was 
applied for and obtained on behalf of the Queen of Portugal. 

Cause* being shown against this rule and a similar rule in a similar 

(a) The proceedings in the Lord Mayor's Court (except the affldayiti of debt in the two snit«» 
and the notices of attAcbment in the last) were not ezpreselj deposed to : but it waa assuned in 
the argument that the regular course of foreign attachment had been punned. 



17 ADOLPHUS & ELUS. N. 8. 206 

action brought against Her most faithful Majesty the Queen of Spain, 
various questions respecting foreign attachment were discussed, which 
we do not feel it necessary to determine, ds we think that, upon simple 
and clear grounds, there has been an excess of jurisdiction by the Court 
of the Lord Mayor of London, against which we are bound to grant a 
prohibition at the prayer of the defendant. 

In the first place, it is quite certain, upon general principles, and 
upon the authority of the case of The *Duke of Brunswick v. r4c9AiT 
!nie King of Hanover, 2 H. L. Oa. l,(a) recently decided in the ^ 
House of Lords, that an action cannot be maintained in any English 
Court against a fofeign potentate, for anything done or omitted to be 
done by him in his public capacity as representative of the nation of 
which he is the head ; and that no English Court has jurisdiction to 
entertain any complaints agaipst him in that capacity. Redress for 
such complaints affecting a British subject is only to be obtained by the 
laws and tribunals of the country which the foreign potentate rules, or 
by the representations, remonstrances, or acts of the British Govern- 
ment. To cite a foreign potentate in a municipal court, for any com- 
plaint against him in his public capacity, is cont!k*ary to the law of 
nations, and an insult which he is entitled to resent. 

The statute 7 Ann. c. 12, passed on the arrest of the Russian ambas- 
sador, to appease the Czar, has always been said to be merely declaratory 
of the law of nations, recognised and enforced by our municipal law ; 
and it provides(fr) that all process, whereby the person of any ambas- 
sador, or of his domestic servant, may be arrested, or hUgood^ distrained 
CT ui^dy shall be utterly null and void. On the occasion of the outrage 
which gave rise to the statute, Lord Holt was present as a privy, coun- 
cillor to advise the Government as to the fit steps to be taken ; and, 
with his sanction, seventeen persons, who had been concerned in arrest- 
ing the ambassador, were committed to prison that they might be pro- 
secQted by information at the suit of the Attorney-General. Can we 
doubt that, in the ^opinion of that great Judge, the Sovereign r^^oAo 
himself would have been considered entitled to the same protection, ^ 
immunity^ and privilege as the minister who represents him ? 

Let us see then what has been done by the Lord Mayor of London. 
On a plaint being entered in his Court against «« Doiia Maria da Gloria, 
as reigning Sovereign and supreme head of the nation of Portugal," 
for what she had done <«for i^d on behalf of the said nation,*' he sum- 
mons her to appear before him ; and, she being solemnly called and. 
making default, he, with full knowledge that she was so sued, issues an* 
attachment against her for this default, to compel her to appear. Under 
this attachment, all her money, goods, and effects within the City and 
liberties of London are ordered to be seized ; if she does not obey the 

(a) Affirming the doorte of the MMtor of tho RoUi in 8. C. 6 Boftr. I. 
{b) Sect. 3. 

VOL. XVII. — 19 N 



208 DB HABER ». QUEEN OP PORTUGAL. T. T. 1861. 

mandate within a year and a day, these funds are to be confiscated or 
applied to the satisfaction of the plaintiff's demand, without any proof 
of its being justly due ; and she can only get rid of the attachment by 
giving bail, to pay the sum which the plaintiff may recover, or to render 
herself to prison that she may be committed to the Poultry or Giltspur 
Street Compter. The attachment applies, not only to all the moneys, 
goods, and effects of the Queen of Portugal then in the hands of the 
garnishee, but to all that shall thereafter come into his hands. The pro- 
cess is studiously framed to be applicable to property of the Queen u 
«( supreme head of" the Portuguese nation. It appears from the afi- 
davit that the plaintiff had entered a former plaint against the Queen 
of Portugal, which, he suggested, was against her in her individosl 
capacity; that, upon an attachment, the garnishee pleaded Nil habet; 
Mfiq-i ^^^ ^^^^ ^P^° ^^^^ issne the "^jvry found a verdict for the gar- 

^ nishee, because all the funds in the hands of the garnishee were 
proved to belong to the defendant in her public capacity as Sovereign 
of the dominions which she governs. Were the defendant now to plead 
Nil habet, the verdict must be against him ; for the funds which he holds 
belong to the defendant in the capacity in which she is sued. While 
this attachment stands, should any money raised by loan, or any muni- 
tions of war, purchased for the use of the Portuguese Government, be 
found within the city of London or the liberties thereof, they are all 
liable to be seized for the benefit of the plaintiff. 

It may be right that we should mention two authorities which we have 
met with in our researches upon this subject, although they were not 
referred to in the argument, as they seem at variance with the ppinion 
we have formed. Bynkershoek, in his treatise De Foro Legatorum, ch. 
iv.,(a) discussing the question whether the goods of a sovereign prince 
in a foreign state are liable to be judicially arrested or attached, says : 
<« In causfi civili cum id inter privates obtineat, ubicunque arreata fre- 
quentantur, ego nullus animadverto, cur non idem obtinere oporteat quod 
ad bona externorum Principum. Si ab arresto Principis temperemns 
ob sanctitatem personn, quis bona Principis in alieno imperio sequ^ aancia 
esse dixerit ? usu gentium invaluit, ut bona, qu» Princeps in altertss 
ditione sibi comparavit, sive hssreditatis, vel quo alio titulo acqaisivit, 
perinde habeantur, ac'bona privatorum, nee min&s, quam hsec, subjici- 
antur oneribus et tributis.*' But this author, who is well known to have 
an antipathy to crowned heads and to nipnarchical government, admits 
^o-iM that other jurists differ from *faim; and he goes on to cite a 

-^ decision in his own country which completely overturns his doc- 
trine, if' In the year 1668, certain private creditors of the King of 
Spain arrested three ships of war of that kingdom, which had entered 
the port of Flushing, that the pursuers might thus obtain satisfaction 
for their debt, the King of Spain being cited to appear at a certain day 

(a) Op«ra, ToL i, p. 161. Ujdw, 1707, feL 



17 ADOLPHUS ft ELLIS. N. 8. )210 

before the Jadgee of the Oourt of Flashing : but, upon the remonstraiiee 
of the Spanish ambassador, the States Oenera], by a decree of 12th 
December, 1668, ordered the authorities of the province of Zealand to 
liberate the Spanish ships of war, and to allow them freely to depart, 
8t the same time directing a representation to be made to the Spanish 
Government to do justice to the Dutch citizens, lest it should be neeea- 
ssrj to rescfrt to reprisals." And there can be no doubt that, according 
to the law of nations, repri»al» would be the appropriate remedy, not 
a jadioial citation before a municipal Court, to be enforced by seisuiie 
of national property. 

In Selden'e Table Talk (Singer's Edition, p. 108,(a) ) there are the 
following words, supposed to be spoken by that profound lawyer himself. 
« The King of Spain was outlawed in Westminster Hall, I being of 
eoansel against him. A merchant had recovered costs against him in 
a anit, which because he could not get, we advised to have him outlawed 
' fornot appearing, and so he was. As soon as Gondomar heard that be 
presently sent the money, by reason, if his master had been outlawed, 
he could not have the benefit of the law, which would have been vei^ 
prejudicial, there being then many suits depending betwixt the King of 
Spain, and our English merchants." 

*The fact here stated seems to have been credited by Lord r^n-i-i 
Chancellor Thurlow, who, in Nabob of the Oamatic v. East India '- 
Company, 1 Yes. Jun. 871, 886, note (64), « observed, that the King 
of Spain had been once outlawed by Selden's advice to prevent him from 
taking advantage of his suit." But he adds: «the outlawry waa bad 
•enough." Others have doubted whether the King of Spain ever was 
outlawed in the manner supposed. Legge, in his Law of Outlawry,(A) 
p. 12, alluding to it, says ; «< This was a very strange case if for costs 
only, as it does not seem to be warrantable by law." 

Such an extract fi^om an amusing book of anecdotes cannot be con- 
aidered any authority for the position that a sovereign prince may be 
sued as such in our municipal Courts, and that property belonging to 
him in his public capacity may be seised to compel an appearance. 
The statement is in no way authenticated by Selden himself, and 'is 
merely a loose report of what is supposed to have fallen from him m 
conversation. It cannot be accurate ; as the outlawry is first supposed 
to have been for non-payment of eosU, and, secondly, for not appoaring : 
and, according to the usual practice, it could not have been in West- 
minster Hall. We have caused search to be made for the record ; but 
it is not forthcoming. There may de facto be judgment of outlawry 
against any sovereign prince who does not appear after being proclaimed 
the requisite number of timea at the Ooonty Court or Court of Hustings, 
no inquiry being made whether the defendant be an alien or a natiuial 

(a) Tit Law, { 8. 



ill DE HABBR 9. QUEEN OF PORTUGAL. T. T. 1851. 

born Englishman, an emperor or a peasant : bat this proceeding is 
^rt^9-| clearly irregalar; and all concerned m it *would be liable to 

''-' punishment. Till stat. 2 & 3 W. 4, c. 39, sect. 5, there could have 
been no outlawry except upon a capias^ which could not be lavfally 
sued out against a peer or member of the House of Commons, moch less 
against a sovereign prince. After outlawry, the outlaw is to be seised 
wherever he can be found, and imprisoned in salv& et arctfi ca8todi&; 
all his personal property is forfeited to the Queen of England ; and she 
is entitled to the profits of all his lands. Such a proceeding is mani- 
festly inapplicable to a foreign sovereign, who must be supposed to be 
in his own dominions, and, if he were in England, could not be so sued 
without a breach of the law of nations and of our municipal law. The 
suits alleged to have been pending between the King of Spain and the 
English merchants, if there were any, were probably actions brought 
by him on bills of exchange, or arising out of some of the commer- 
cial transactions in which his Majesty was then engaged. For such 
matters a foreign sovereign might and may still sue in our Courts of 
justice : but no authority can be found for his being sued here as a 
sovereign. 

In the case of The Prince Frederick, before Lord Stowell as Judge 
of the Admiralty, the same view of the subject was taken by that 
greatest of jurists, although, from a compromise, no formal judgment 
was pronounced. There a Dutch ship of war had been saved from ship- 
wreck by English sailors, who libelled her for the salvage. Objection 
being made that the Court had no jurisdiction, a distinction was 
attempted, that the salvors were not suing the King of the Netherlands, 
*Q1 ^1 ^"^ ^^^^' being in possession of, and having a *lien upon, a ship 
^ which they have saved, the proceeding might be considered ta 
rem. But Lord Stowell saw such insuperable difficulties in judicially 
assessing the amount of salvage, the payment of which was to be enforced 
by sale, that he caused a representation to be made on the subject to 
the Dutch government, who very honourably consented to bis dis- 
posing of the matter as an arbitrator. The case of The Prince Fre- 
derick is not in print ; but we had an account of it from the Queen's 
advocate. 

Notwithstanding the dictum of Bynkershoek, and the outlawry of 
the King of Spain, supposed to be related by Selden, we cannot doubt 
that the awarding of the attachment in the present case by the Lord 
Mayor's Court was an excess of jurisdiction, on the ground that the 
defendant is sued as a foreign potentate. 

Therefore, the circumstance that the cause of action, if there were 
any, arose out of the jurisdiction of the Lord Mayor's Court, need not 
be relied upon. Nevertheless, after the strong assertions at the bar 
that this is immaterial where the defendant does not appear, we think 
it right to say that, having examined the authorities, we entertain no 



17 ADOLPHUS & ELLIS. N. 8. 21S 

joobt that the process of foreign attachment can only be duly resorted 
to where the cause of action arose within the jurisdiction of the Court 
from which it issues. The garnishee is safe by paying under the judg- 
ment of the Court : but the objection that the cause of action did not 
arise within the jurisdiction of the Court, if properly taken, must pre- 
Tail. No agreement of counsel to abstain from making the objection 
can alter the law of the land, which says that an inferior Court can 
odIj hold plea where the cause of action ^arises within the local ^4,014 
limits to which its jurisdiction by charter or custom is confined. ^ 

We have now to consider whether we can grant the prohibition on 
the application of the Queen of Portugal before she appears in the Lord 
Major's Court. The plaintiff's counsel argue that, before she can be 
heard, she must appear and put in bail, in the alternative, to pay or to 
render. It would be very much to be lamented if, before doing justice 
to her, we were obliged to impose a condition upon her which would be 
a further indignity, and a further violation of the law of nations. If 
the rule were that the application for a prohibition can only be by the 
defendant after appearance, we should have had little scruple in making 
this an exception to the rule. But we find it laid down in books of the 
highest authority that, where the Court to which the prohibition is to 
go has no jurisdiction, a prohibition may be granted upon the request 
of %»tranger^ as well as of the defendant himself; 2 Inst. 607, Com. 
Dig. Prohibition^ (E.). The reason is that, where an inferior Court 
exceeds its jurisdiction, it is chargeable with a contempt of the Crown 
as well as ja grievance to the party ; Ede v. Jackson, Fort. 845. There- 
fore this Court, vested with the power of preventing all inferior Courts 
I from exceeding their jurisdiction to the prejudice of the Queen or her 
subjects, is bound to interfere when duly informed of such an excess 
of jurisdiction. What has been done in this case by the Lord Mayor's 
Court must be considered as peculiarly in contempt of the Crown, it 
being an insult to an independent sovereign, giving that sovereign just 
cause of complaint to the British Government, and having a r^oiic 
^tendency to bring about a misunderstanding between our own ^ 
gracious Sovereign and her ally the Queen of Portugal. 

Therefore, upon the information and complaint of the Queen of 
Portugal, either as the party grieved, or as a ttranger, we think we 
are bound to correct the excess of jurisdiction brought to our notice, 
and to prohibit the Lord Mayor's Court from proceeding further in this 
suit. Rule absolate.(a) 

(a) 8«e Wettoby «. Day, 2 B. * B. 605 (B. G. L. R. toL 76.) 



v2 



21» WADSWORTH v. QUEEN OF SPAIN. T. T. 1851. 



WADSWORTH v. The QUEEN OF SPAIN. 

This case nearly resembles that in which we have jnst given jodg- 
ment, bat differs from it in two particulars. 1. Here the plaintiff's 
affidavit does not expressly state that the action is brought against tbe 
defendant as reigning Sovereign and supreme Head of the Spanish 
nation ; and, 2. The party applying is the garnishee, after pleading 
Nil habet. 

The effect of the first difference is entirely done away with by the 
disclosure the plaintiff makes in the affidavit of his supposed cause of 
action, which is on a written instrument commonly called a Spanish 
Oovernment bond in the form of a debenture entitled «< Public Debt of 
SpatHj" signed by an officer of the Government of Spain as contractor, 
amd purporting to have been issued under a decree of the Cortes sanc- 
tioned by the Regent of Spain in the name of her daughter, the pre- 
sent Queen, then a minor. It is quite clear that no one could pretend 
^Ifi1 ^P^^ ^^^^ ^^ instrument to bring an ^action against the Queen 
^ of Spain as a private individual, supposing that she could be 
sued in the Lord Mayor's Court for a debt contracted by her in London 
in her private capacity, she having by the constitutional laws of Spain 
private property which would be answerable for such a debt. 

There is here therefore an equal want of jurisdiction in the Lord 
Mayor's Court to entertain the suit or to summon the defendant. 
Nevertheless, the Lord Mayor did entertain the suit, summoned the 
defendant, and, upon her making default in appearing before him, with 
full knowledge of the alleged cause of action, awarded an attachment 
against her, under which money due to her in her public capacity as 
Sovereign of Spain was liable to be seized. 

There is in this case, therefore, the same palpable excess of jurisdic- 
tion pointed out in the case of the Queen of Portugal. We have only 
to consider whether there is before us a proper party to pray for a pro- 
hibition. The Queen of Spain does not make the complaint ; and it 
is only made by the garnishee, after pleading Nil habet. The plaintiff's 
counsel argue that the garnishee could only plead Nil habet ; that, if 
the Queen of Spain has any privilege against being sued in the Courts 
of this country, she only can take advantage of it ; that she ought to 
have appeared and pleaded to the jurisdiction; that by her non-appear- 
ance she must be considered as having waived her privilege ; that there 
has been no excess of jurisdiction at any rate as far as the garnishee 
is concerned ; that it must be presumed that the Lord Mayor's Court 
will do its duty ; and that, if it decide improperly, the remedy is a 
writ of error by which the record may finally be brought into this 
i^tyyrj-y Court. But WO *are clearly of opinion that in a case of this 
^ sort, if the garnishee comes in time, he may be heard in this 
Court and a prohibition may be granted at his instance. Here there 



17 ABOLFHUS A ELLIB. N. 3« 217 

neither was nor coald be any personal summonB ; the defendant could 
not be required to appear without a breach of the law of nations ; the. 
plea to the jurisdiction could only have been pleaded by her in her 
proper person ; the garnishee has an interest in getting aside an attach- 
ment improperly executed if he has funds of the defendant in his 
hands ; for, although he would be discharged according to the law of 
this country by payment under the judgment of the Lord Mayor'u 
Court, the law of Spain may not recognise such a payment ; he is pre- 
vented from applying the funds in payment of a debt which may after- 
wards become due to himself from the Spanish Government : and at all 
events he is «<a stranger" on whose information and complaint of the 
excess of jurisdiction in contempt of the Grown we should be bound to 
correct it by a prohibition. If the record fully disclosed the error into 
which the inferior Court has fallen, after there has been an excess of 
jurisdiction, a prohibition and not a writ of error is the appropriate 
remedy. 

'ELas the garnishee then, by pleading Nil habet, disqualified himself 
from coming before us to pray for the prohibition 7 Wo think not. He 
was bound to put in a plea, that he might avoid judgment; and, before 
the trial of the issue upon that plea, and within a reasonable time after 
pleading it, he applies for a prohibition to prevent further proceedings 
in an action which ought never to have been commenced. Hoc statu,, 
a stranger might successfully apply for a prohibition ; and, surely, sa 
may the garnishee. 



*To show that a prohibition could not be applied for till the 



[*218 



objection relied upon was specifically made in the inferior Court 
and overruled, the plaintiff *s counsel mainly relied upon the two case^ 
of Home v. Lord Camden, 2 H. Bl. 583, and Chesterton v. Farlar, 7 
A. & E. 713 (E. G. L. B. vol. 84). In the- former case it was held hj 
the House of Lords, m conformity with the advice of all the Judges, 
that, whether the misinterpretation by an inferidr Court of a statute, 
the consideration of which is confessed to be within its jurisdiction^ be i^ 
ground for a prohibition, or be not rather a matter of appeal, in sucli^ 
case a prohibition will not lie unless it be made to appear to the superior 
Court that the party applying for the prohibition has in- the inferior 
Court alleged the grounds for a contrary interpretation of the statute 
on which he appears for the prohibition, and that the inferior Court has 
proceeded notwithstanding such allegation. But the opinion of the 
Judges, delivered by Lord Chief Justice Eyre, on which the House 
acted, was founded entirely upon the reason that the inferior Court (the 
Commissioners of Prizes) had committed no excess of jurisdiction, and 
therefore that a misconstruction of the Act of parliament was rather 
the subject of an appeal than of a prohibition. He says :{a) «( The 
complaint made to the temporal Court is not that the sentence is wrong, 

(a) 2 H. Bi MS. 



218 WADSWORTH v. QUEEN OP SPAIN. T. T. 1851. 

which indeed the temporal Court had no jnrisdiction to correct if it 
were wrong, nor is the complaint that the sentence was an excess of 
jurisdiction, or in any other respect a ground for prohibiting the Prize 
Court to carry it into execution." In Chesterton v. Farlar, a party 
♦91 Ql *^^^ ^^^ appealed from the Arches Court to the Queen in 
^ Council, the appeal being referred by her to the Judicial Com- 
mittee, while the appeal was pending and before any proceeding had 
been taken in that Court, mored the Court of Queen's Bench for a pro- 
hibition, on the ground that a church rate on which the suit had been 
commenced in the Consistory Court was bad, as appeared by the plead- 
ings there. The Court of Queen's Bench (I think very properly) held 
that a prohibition could not be granted on this ground, the eatue being 
before a Court the jurUdietion of which was not deniedj no erroneoui 
proceeding having been taken there^ and this Court refusing to presume 
that the Judicial Committee would act incorrectly. Lord Denman, 
having pointed out that the Court before which the cause then was had 
jurisdiction over it, and had not fallen into any mistake, adds : «< If, in 
the progress of the cause, the" " Court should commit any error, if 
they do anything against common law or Acts of parliament, we may 
then interfere." But, in the case at bar, the inferior Court had no 
jurisdiction to entertain the cause ; and, before the prohibition was 
applied for, the inferior Court bad committed a manifest error and had 
clearly exceeded its jurisdiction by summoning the Queen of Spain, and 
issuing an attachment against her. 

Judicial procedure in England would have been liable to great reproach 
had it not afforded a prompt and effectual remedy at once to put an end 
to actions brought in perversion of the ancient and laudable custom of 
foreign attachment in the city of London, and in violation of the uni- 
versal law by which all civilized nations are bound. It gives us great 
*9901 ^^^^^^^^^^^i^y therefore, to be able, ^consistently with the deci- 
■' sions of our predecessors, and the principles by which they have 
been guided, to grant the relief which is prayed. If we had entertained 
any grave doubt upon the subject we should have directed the applicant 
to declare in prohibition : but, being clearly of opinion that there is an 
excess of jurisdiction in the Court below, of which he is entitled to 
complain before us, it is our duty simply to make the rule absolute. 

Rule absolute. 



17 ADOLPHUS & ELLIS. N. 8. 220 



The QUEEN «. HASLAM and HOWARTH. May SI. 

The oeeupiera (not being owners) of premises were rated for them to the poor as for "Chemieal 
works, lands and baildings." Part of the works consisted of ''ehambers" used for the manafao- 
tBTB of snlpharic acid. The chambers were vessels of sheet lead, weighing each several tons, 
13 feet high, 13 wide, and from 40 to 60 long; the lower part forming a dish 12 inches deep, 
in which the acid was deposited ; the upper shotting down upon the lower and receiving vapour. 
They stood in the open air; each was surrounded by walls of strong masonry forming aa 
oblong, which was filled up with sand; and the chamber rested upon the sand, being also 
supported by and riveted to a ft'ame of wood which ran round the tops of the walls. The 
wooden frame was in some instances laid in mortar on the tops of the walls ; in others 11 
merely rested upon them. At each end of the chamber was a pipe to convey gases and vapours 
in and out; each pipe was fixed, at ite eitremity, into buildings which were part of the free- 
hold. Where the pipes entered and passed out of the chamber, the lead of the chamber wai 
beaten round the pipe, and the insertion was made vapour-tight by luting. Steam (necessary 
to the mannfactnre) was conveyed into the chamber, also by a pipe, which passed from the 
boiler and was riveto^ to the wooden frame-work. The boiler was affiled to the freehold, and 
the pipe to the boiler. Every pipe might be removed by taking it to pieces, or by unfastening 
the rivete, without injury to the freehold : and then the chamber would rest on the ground by 
its mere weight, and might, with sufficient force, be lifted from the soil without displacing anj 
part of the freehold. In a case stated for the opinion of this Court, the Sessions found that the 
ehambers were attached to the freehold in manner before mentioned, but not afilxed thereto. 
Held, that, assuming the chambers not to be so annexed as to form part of the freehold, yet, 
being fixed maehinery, attached to buildings, and neoessarily so attached for the purpose of 
being used, they were properly considered in the rate as increasing the rateable value of the 
buildings : and a rate calculated on such increased value was confirmed." 

On appeal against a rate for the relief of the poor of the township 
of Great Bolton in the borough of *Bolton in the county of 



Lancaster, the Sessions confirmed the rate, subject to the opinion 



[*221 



of this Court upon a special case. 

The case set forth the rate appealed against, by which the appellants 
were assessed at 222. 15«. 9(2. upon «< Chemical works, lands, tene- 
mentff, erections, and buildings," occupied by them ; owners, Robert 
Howarth's executors ; gross estimated rental, 2722. 7«. 8d. ; rateable 
Talae, 2272. 17«. After stating that the appellants were in fact the 
occupiers, the case proceeded as follows. 

Certain chambers, hereinafter described, and which were used for 
the manufacture therein of sulphuric abid, were erected in manner here- 
inafter mentioned on the said lands, and were used in the occupation 
of such chemical works, lands, tenements, erections, and buildings : and 
the said chemical works, lands, &c., were in the said rate assessed at 
an increased value in consequence and by reason of such chambers and 
of the user thereof. 

The case then stated that the appellants objected that they were 
assessed too highly, and were not liable by law to be rated or assessed 
in the said rate, either on account of the chambers, or for any increased 
value of the said chemical works, lands, &c., arising from the use of the 
said chambers. The respondents maintained the contrary. It was 
farther stated that the annual rateable value of the said chemical works, 
lands, &c., exclusive of the increased value arising from the chambers, 

VOL. XVII. — 20 



221 BBGINA v. HASLAM. T. T. 1851. 

was 1622. Us. 5d. ; inclusive of such value, 2272. lis. The residue of 
the case was as follows. 

The said chambers are constructed in manner following. The said 
chambers are placed upon the land in the open air, and are not in any 
♦2291 ^*y enclosed in or *covered by any building or erection. The 
"-' chambers occupy large spaces of ground : their respective lengths 
vary from 40 feet to 60 feet : each of them is 13 feet high ; and the 
average width of each is about 13 feet. Each of such chambers is a 
very large vessel of sheet lead, weighing several tons, and is com- 
posed of two parts; the lower part is a dish about 12 inches deep, in 
which the acid is deposited ; and the upper part shuts down on the lower 
and receives the vapour. 

The mode of erecting such chamber is as follows. In some instances 
the soil has been excavated for the purpose of erecting foundation vails 
of strong masonry ; in others these walls stand upon the natural level 
of the ground. The walls are built in the shape of an oblong ; and the 
inside is filled with sand and other materials to a level with the top of 
the walls. The chamber rests on the sand ; a sill, composed of four 
strong beams of wood, runs along the top of the walls, on which is fixed 
a frame work of wood which encompasses the chamber and is used for 
its support. The chamber is attached to the frame work by leaden 
rivets. In some of the more ancient chambers the sill is pluced on 
mortar which has been spread on the top of walls for the purpose of 
preserving the level ; but in the more modern instances the sill rests 
on the top of the walls without the assistance or aid of mortar or any 
other such substance. 

At each end of the chamber there is a pipe for the purpose of conveying 
the gases and vapours into and out of the chamber : both are at their 
extremities fixed into buildings which are part of the freehold ; but the 
^29Q-| pipe which conveys the gas and vapour into the ^chamber enters the 
^ chamber in the following manner. A circular hole is cut into the 
chamber, through which the pipe is inserted : and the lead of the chamber 
is then beaten round the pipe : the whole is rendered vapour tight by 
means of a luting of white*lead and other materials. The pipe which 
conveys the vapour from the chamber is fastened to the chamber in the 
same manner ; and it consists of several short pieces of pipe which slide 
into each other like the joints of a telescope, and are rendered vapour 
tight by means of luting. It is necessary in the process of manufacture 
to convey steam into the chamber ; and it is conveyed from the boiler 
by means of a pipe which is attached to the frame work before men- 
tioned by leaden rivets. The boiler is affixed to the freehold ; and the 
pipe at that extremity is affixed to the boiler. That pipe may be 
removed at pleasure, without injury to the freehold, by unfastening the 
rivets which attach it to the frame work ; and the pipes conveying the 
gases into and from the chambers may also be removed at pleasure, and 



17 ADOLPHUS & ELLIS. N. S. 228 

* !■■■ ^ .■■.■■ ■ 

without iojuiiDg the freehold, hj withdrawing the pieces of which the 
pipes are composed. When these pipes are so withdrawn, the chamber 
rests on the ground by its mere weight, and, if sufficient force were 
used, might be lifted from the soil without dbplacing any part of the 
freehold. 

The chambers are attached in manner before mentioned to the free- 
hold, bat are not affixed thereto. 

It was proved that personal property was not rated in the said town- 
ship to the relief of the poor. 

Upon the above facts, the Court found that the said chambers were 
attaehed in manner before mentioned to *the freehold, biit were r^cooA 
not affixed thereto : and the Conrt confirmed the rate, snbject to *- 
the opinion of the Court of Queen's Bench. The questions for the opi- 
nion of the Court are : 

1. Whether, on the beforo^mentioned statement of the building and 
annexation, the said chambers are affixed to the freehold* 

i. Whether,' if the said chambers are not, under the said circum- 
stances of building and annexation, affixed to the freehold, the 
land and buildings are liable to be rated at a greater amount by 
reason of the use of thoqe chambers on the land. 

If the opinion of this Comrt should be in the affirmative on either ques« 
tion, the rate was to be confirmed ; if to the contrary on both questions, 
the rateable value to be reduced to 1622. lis. 5(2., and the rate to 16L 
St. 3i. - 

The case was now argued.(a) 

SaUj in support of the order of Sessions. — As to the first question : 
the ease finds that the chambers are <( attached*' to the freehold but 
not «( affixed thereto." [Colbridgb, J. — This question seems to be one 
of &ct. Pattbson, J. — I do not know what is meant by << attached" 
to the freehold, but not << affixed." Whether they are really let into 
the land or not, would be a question of fact ; whether they would go to 
the heir or executor, would be a point of law.] The facts found show that 
the chambers are affixed to the freehold. But assuming that they are 
not, the premises *are rateable in respect of them, because r^noc 
they make the occupation more valuable. This principle of ^ 
rating was established by Rex v. St. Nicholas, Gloucester, Cald. 262, 
S. C. 1 T. R. 723, note (a),(i) and Rex v. Hogg, 1 T. R. 721. [Colb- 
XIUOB, J. — In those cases there was, in any view of the question, some 
rateable subject.] So there is here ; the foundation walls, the boiler, 
and the pipe serving as a chimney. Among the later cases are Rex v. 
The Birmingham k Stafibrdshire Oas Light Company, 6 A. & E. 684 
(£. C. L. R. vol. 38)^ (where the word <« attached*^ occurs in the judg« 
ment), Begina v. Guest, 7 A. fc B. 961 (E. C. L. R. vol. 84), and Re- 

(a) Before Pattenon, Coleridge, and Brie, Ji. Lord Campbell, C. J., had left the Cnnrt 
(6) 8e« Begiaa ew Lekh, 1 & 4 B. 121 (B. G. L. B. voL 72), Eesina «. MonriMO, 1 1. * 
B.1M 



226 REGINA v. HASLAM. T. T. 1851. 

gina V. Southampton Dock Gompanj, 14 Q. B. 687 (E. C. L. R. vol. 
68). It is true that part of this machinery might be removed without 
disturbing anything which is fixed to the freehold; that is the case 
also with a crane or a steam-engine; but the severance would make the 
whole useless. The appellants are not owners but they are occupiers 
of the land ; and the use of this machinery is a mode of enjoying the 
occupation, not the freehold. If they assigned their chemical works, 
the entire subject-matter of this rate would pass by their assignment. 
The premises, if let for carrying on chemical works with this m»> 
chinery, would bring an advanced rent. 

Cowling^ cdntri. — The first point is expressly decided by the Ses- 
sions. [Patteson, J. — They put a question to us upon it : but, if this 
point were the material one, we should perhaps refer it back to the 
Sessions.] As to the second point : the appellants raise no question 
of form, and will consider the rate as laid upon land increased in value 
^tync-i ^7 machinery. Then, the chambers *are neither literally nor 
\ substantially fixtures. They are rather stock in trade than any- 
thing forming part of << lands" within the meaning of the Poor laws. 
The furnaces and other buildings are rateable ; but the chambers are 
only receptacles for the vapour and steam carried in by the pipes, with 
dishes to contain the acid. The rolling stock of a railway might as 
well be deemed fixtures. The chambers, if of a smaller size, might be 
held by manual strength to receive the vapour; and weight merely 
cannot make them fixtures; a ship is but a personal chattel. The 
pipes merely connect them with other machinery ; they do not incorpo- 
rate them with the land or walls. To be rateable upon the principle 
secondly relied upon, they ought, for the time at .least, to be part of 
the Und. The case does not show that they have ever been rented by 
a. tenant. [Patteson, J. — If the occupiers underlet the works they 
would get a higher rent on account of these additions.] So a house lets 
for more money if furnished. These chambers are merely conveniences 
which the occupier of the works might from time to time add or remove 
as his business increased or diminished. [Colbribge, J. — The case 
does not state who erected them.] It is defective in that, and perhaps 
ought to be restated. As to the cases cited for the appellants. In Rex 
V. St. Nicholas, Gloucester, 1 T. R. 728, note (a), S. C. Cald. 262, the 
weighing machine had the character of a fixture ; it had always belonged 
to the house ; and it was considered by Lord Mansfield as annexed to 
the freehold. In Rex v. Hogg, 1 T. R. 721, the carding engine was 
considered as part of the house. The language of Lord Denman in Rex 
V. The Birmingham k Staffordshire Gus Light Company, 6 A. & E. 644 
Moni (^' ^* ^* ^* ^^^' ^^)y I'^liod *upon by the respondents, is cer- 
^ tainly strong ; but there, as appears by the statement of the 
case, the steam-engines and other machinery were fixed to the land 
and buildings. In Regina v. Guest, 7 A. & E. 961 (E. C. L. R. vol. 



17 ADOLPHUS ft ELLIS. N. S. 227 

34), the judgment is very generally expressed ; and the attention of 
the Coart is directed chiefly to the exclusion of certain tests of ratea- 
bility. A literal application of the language in this and the last pre- 
ceding case would authorise rating furnished houses in respect of the 
furaitare. In Rex v. Bradford, 4 M. ft S. 817, the privilege of the 
canteen, which enhanced the value of the house, waa treated as a thing 
appurtenant to and not to be divided from it. In Regina v. Southamp- 
ton Dock Company, the cranes, steam-engines, and other fixed plant, 
were not only ponderous, but incorporated with the freehold. Here 
the subject of rate is a thing detached, a mere utensil, and not such a 
fixture as the Courts have allowed to be taken into consideration in es- 
timating rateable value. Cur. adv. vuU. 

Patteson, J., on a subsequent day of the term (June 11th), delivered 
the judgment of the Court. 

We do not think it necessary in this case to determine whether the 
chambers erected on the appellants' premises are or are not annexed to 
the freehold, which is rather a question of fact for the Court of Quar- 
ter Sessions to find than for us to decide : because we are of opinion 
that, according to the principle laid down in the various cases on this 
subject, the rateable value of the premises is undoubtedly increased by 
the use of *tho8e chambers. In Rex v. The Proprietors of the r^tono 
Liverpool Exchange, 1 A. ft E. 466 (E. C. L. R. vol. 28), the ^ 
Court, after citing several previous decisions, say : <« These cases esta- 
blish the principle, that the advantages attendant upon a building, 
either in respect of its situation or the mode of its occupation, are to 
be taken into the account in estimating its rateable annual value, 
wherever those advantages would enable the owner of the building to 
let it at a higher rent than it would otherwise fetch." And again, in 
Regina v. Gueflt, 7 A. ft E. 956 (E. C. L. R. vol. 84), the Court state 
the general principle to be, «« that real property ought to be rated ac- 
cording to its actual value, as combined with the machinery attached 
to it, without considering whether the machinery be real or personal 
property, so as to be liable to distress or seizure under a fieri facias, or 
whether it would descend to the heir or executor, or belong, at the ex- 
piration of a lease, to landlord or tenant:" and the Court referred to 
Rex V. Birmingham ft Staffordshire Gas Light Company, 6 A. ft E. 634 
(£. C. L« R* vol. S3), where the same principle was laid down. All 
these cases have lately been brought before the Court, and recognised 
as well decided, in the case of Regina v. Southampton Dock Company. 
Indeed, on the argument in the present case, the attempt was rather 
to show that the chambers did not come within the principle so laid 
down than to attack the principle itself; and it was urged that the 
chambers were rather of the nature of movable utensils or machines, 
or of furniture in a dwelling-house, than of fixtures. It is, however, 
plain from the facts stated that they are used as part of the fixed ma^ 





228 REOINA v. HA8LAM. T. T. 1851. 

chinery of the works, sttftcfaed to the other bnildings for the pnrpoee 
♦99Q1 ^^ being so nsed, and ^necessarily so attached in the use of 
^ them, although capable perhaps of being removed without injurj 
to the other buildings. Nor can it be denied that, if the appellants 
were to underlet the premises, thej would fetch a higher rent as they 
now stand, with these chambers upon them, than they would if the 
chambers were removed. 

We are therefore of opinion that the rate and the order of Sessions 
must be confirmed. Order of Sessions confirmed. 



The QUEEN v. HELLIER. May 31. 

tin Afipeal againit s eooTietlon under Um Alehoiue UMndag Ati, 9 Q, 4, o. 51, ike SMaoni 
afBrmed the eoDTieUon, and ordered that the appellant shoold fortkmtk pay to fJU ntpamdtat 
jtttfieev.the sum of, Ac, for costs, and, in case of default, sbonld be committed to the Hoase of 
Coirection until tueh sum thavld 6e paid. Held (though oonfonnable to stat 9 G. 4, o. 61, i. 
29), a bad order since stat 11 A 12 Vict o. 43, which, bj seot^ 27, enaeta that, if, on appesl 
against " such conviction or order" as is there mentioned, the Sessions shall award costs, their 
order shall direct the costs to be paid to the CUrk of ike peaee, to be bj him paid over to the 
party entitled, and shall state witkim wAof time payment sl^all be, and that, on non-paynat 
within the time, and in default of dittreee, the party may be committed for any time aeC 
eaeeeeding three monthe^ unlen tht eoettf Ac, he eooner paid. For the words ** such" *' order" 
apply generally to all orders of magistrates out of Sessions, and appeals againat such oidtn 
(unless in cases excepted by the Act) ; and the Act (sect 3S) repesJs all statutea ineonsisteai 
with it 

Certiorari is taken away by stat 9 G. 4, c 61, a. 34 : bat the order was brongbt into thb Ceart 
by an ex parte application of the respondents under stat 12 A 13 Vict. e. 45, s. 18, for the 
purpose of having execution. The appellant had paid 10/. in part of the costs : bat, on the 
order being remored, he immediately applied to a Jadge at chambers, In Taention, to stay 
execution. The Judge holding himself not authorised to interfere, the execution proceeded. 
In the ensaing term the appellant moved the Court to set aside the execution. Six montfai 
liad then elapsed since the making of the order of sessions. Held that, the order of sessiou 
being before the Court, the appellant might object to it as illegal ; that ke waa not too Uls, 
having proceeded without delay after the removal : and that his right was not prejudiced by 
the part-payment of costs. 

The Court set aside the fi. fa., and ordered the moneys paid and levied to be refimded ; tiie 
appellant undertaking to bring no action. 

Pashlet, in last Easter term (May 5th), obtained a rule to show 

^^oQi cause why an order of sessions, ^dismissing an appeal of Wil- 

^ liam Hellier against a conviction under stat. 9 O. 4, c. 61, with 

costs, should not be quashed, and the proceedings on the said order set 

aside. 

It appeared on affidavit that, on 80th July, 1850, the appellant, W. 
Hellier, of Melcombe Regis, in Dorsetshire, innkeeper, was convicted, 
under stat. 9 G. 4, c. 61, (« To regulate the granting of licenses to 
keepers of inns, alehouses, and victualling-houses, in England,*') before 
three justices of 'the borough of Weymouth and Melcombe Regis, in 
the said county, in the penalty of lOL for a second offence against the 
tenor of his license, in suffering persons of notoriously bad character 
to assemble at his house : that he appealed against the conviction, and 



17 ADOLPHUS k ELLIS. N. S. 280 

itwM affirmed at the sessionB, holden October 15tb, 1850, without 
bearing on the merits, because, as the sessions held, notice of appeal 
had not been daly served within sect. 27 of the Act. The order of 
. sessions, after adjudication that the appeal should be dismissed, pro- 
ceeded : «« And this Court doth hereby adjudge and order that the said 
W. H., the appellant, do and shall forthwith pay or cause to be paid 
Qoto the said George Oulverwell Welsford, William Devenish, and Wil- 
liam Bayly, the respondent justices aforesaid, or to some or one of 
them, or to whomsoever they shall appoint, the sum of 242. 17s. 6<2^ 
being such costs as in the opinion of this Court will be sufficient to 
indemnify the said justices," &c. «< And this Court doth further ad- 
judge and order that, if the said W. H. shall refuse or neglect forth- 
with to pay the said sum of 24L 17«. 6d., that the said W. H. shall 
and he is hereby ordered to be committed to the House of Correction 
of the said county of Dorset, there to remain until such sum be paid." 

*0n November 19th, 1850, the appellant paid to the clerk of r^ooi 
and attorney for the justices, at his office, the sum of 10{. on \ 
account of the costs ; and, the residue not being paid, and no effects of 
defendant being found within the jurisdiction, the said clerk and attor- 
ney obtained the order of Erie, J., at chambers (8th February, 1851), 
to remove(a) the judgment of Quarter Sessions into this Court(i) for 
the purpose of enforcing execution. Hellier then took out a summons, 
returnable at Chambers, to stay proceedings on the last-mentioned 
order : but, upon the hearing (February 21st) before Patteson, J., the 
learned Judge dismissed the summons, being of opinion that he had no 
jurisdiction. A fi. fa. was then issued and duly executed, and levy 
made (March 8d, 1851) on defendant's goods for the balance of costs 
awarded by the order of Sessions, and for the costs of removing that 
order. 

The objections to the order of sessions were that it was not framed 
according to sect. 27 of stat. 11 -k 12 Vict. c. 43 (<« To facilitate the 



[♦282 



performance of the duties *of justices of the peace out of ses- 
sions," kc.j{c) ), inasmuch as the costs were ordered io be paid 

(a) Stot. 12 A 18 Viet e,*46 ("To amrad the proMdnre In Coatts of Generml and Quarter 
SMriont," Jko.)f enacts, by seot 18, "That in all caiei where aoj order shall be made by any 
Coort of General or Quarter Sesiions of the peace It ihall be lawftil for the Coart of Queen's 
Bench, or for any Judge of that Court at chambers, either in term or Yaeation, upon the appliea- 
tion of any person entitled to enforce sueh order, and upon the production of a copy of such order 
under the band of the Clerk of the peace or his deputy, and upon proof of refusal or neglect to 
obey such order, to order and direct such order of the Court of General or Quarter Sessions to be 
leaored into the said Court of Queen's Bench, and thereupon such order shall be of the same 
force and effeet, and may be enforced In the same manner, as a rule made by the said Court 
of Queen's Bench ; and all the reasonable costs and charges attendant upon such application 
•ad remoral shall be recorerabte in like manner as if the same were part of such order." 

(b) Without certiorari : See Hawker *. Field, I Lowndes, M. A P. 600. 

(e) Stat. 11 A 12 Vict c. 43, s. 27, enacts: "That after an appeal against any such conviction 
or order as aforesaid," (see sect 17, et seq.), " shall be decided, if the same shall be decided In 
&ro«r of the respondents," the eonrietlng JnsUoe or Jostioes, or any other Justice of the same 
eounty, 40., may issno a wamat of diitrsM or eommitaon^ 4e^ ; "and if upon any MMh appaal 



REGINA V. HELLIER. T. T. 1851. 



it forthwith" and not at a specified day ; and were made payable to other 
persons than the clerk of the peace ;(a) and the committal was until 
payment of the costs. And it was contended that, although the party 
complaining might not have been entitled to bring up the order for the 
purpose of taking these objections, he might now take them, the order 
being before the Court. 

Butt and Ffooks now showed caase.-^Assuming that the convicted 
party is not precluded from objecting to this order by sect. 34 of stat. 
9 6. 4, c. 61 (which enacts that no conviction under that statute, nor 
adjudication on appeal therefrom, << shall be quashed for want of form, 
or be removed, by writ of certiorari or otherwise," into any superior 
Court), yet it is too late to impeach the order of sessions when aiz 
months (the time limited by stat. 18 6. 2, c. 18, s. 5, for obtaining a 
certiorari) have elapsed since it was made, during which interval there 
*have been two terms ; and the party has paid 101. on accoant 
of the costs. [Erlb, J. — Had he any power of disputing the 
order before ?] He might have refused payment. [Ekle, J. — Then 
he must have gone to prison. The payment was not voluntary. And 
the delay in bringing up the order is yours. Patteson, J. — As soon 
as this party know that the order was removed, he applied to me to stay 
the execution.] The order is not in Court as on a certiorari ; it is 
merely brought up by the justices, ex parte, in furtherance of the par- 
ticular remedy given them by stat. 9 0. 4, c. 61, s. 29,{b) [Goleru>qe, 



•233] 



the Court of Quarter Sessions shall order either party to pay oosts, such order shall direct tack 
costs to be paid to the clerk of the peace of such Court, to be by him paid over to the party entitled 
to the same, and shall state within what time such costs shaU be paid ; and if the same shall not be 
paid within the time so limited/' and the party ordered to pay be not under recognisance to pay 
them, the cleric of the peace, on application by the party entitled to such costs, shall grant a 
certificate, on production of which it shall be lawful for a Justice to issue a warrant of distrees, 
and of commitment, in default of distress, " for any time not exceeding three calendar months^* 
nnless the costs, Ac, be sooner paid. 

(a) See Regina v. Binney, 1 B. A B. 810 (E. 0. L. R. vol. 72). 

(6) Stat 9 G. 4, c. 61, s. 20, enacts: "That in every case where notiee of appeal against the 
judgment of any justice in or concerning the execution of this Act shall have been giVen, and 
such appeal shall hare been dismissed, or the judgment so appealed against shall have been 
affirmed, or such appeal shall have been abandoned, it shall be lawful for the Court to whom 
tuch appeal shall have been made or intended to be made, and raoh Court is hereby required* 
to a(^udge and order that the party so having appealed, or given notice of his intention to 
appeal, shall pay to the justice to whom such notice shall have been given, or to whomsoever 
he shall appoint, such sum, by way of coats, as shall in the opinion of such Court be sufficient ta 
indemnify such justice' from all costs and charge whatsoever,'* occasioned by his having been 
served with notiee of appeal ; ** and if such party shall refhse or neglect forthwith to pay such 
ram, it shall be lawful for the said Court to ati^udge and order that" he ** be committed to the 
oommon gaol or House of Correction, there to remain until such sum be paid ; and that in evei7 
case in which the jud lament so appealed against shall be reversed, it shall be lawful for such 
Court, if it shall think fit, to adjudge and order that the treararer of the county or place in and 
for which such justice whose judgment shall have been so reversed shall have acted on Ite 
occasion when he shall have given such judgment, shall pay to such justice, or to whomsoever 
he shall appoint, such sum as shall, in the opinion of such Court, be sufficient to indemnify 
rach justice from all coxts and charges whatsoever, to which such justice may have been so put; 
and the said treasurer is her^'by authorised to pay the same, which shall be allowed to him in 
hij ftooonnts." 



17 ADOLPHUS & ELLIS. N. S. 238 

J.— Can it be effectually brought *here for that parpose, if it is r^qoA 
a bad order ?] If not defective on its face, it may. ^ 

Then, as to the order itself. The ground of objection is that stat. 
9 0. 4, c. 61, s. 29, is impliedly repealed by stat. 11 & 12 Vict. c. 43, 
8. 27. Bat this enactment is a provision for summary convictions and 
orders generally : the former is a special protection to justices in the 
particalar business of alehouse-licensing ; the latter claase does not 
repeal the earlier ; nor is any intention shown to introduce a new pro- 
cess in the particular case before provided for. [Golbridoe, J. — Stat. 
11 & 12 Vict. c. 48, applies to a great number of Acts of Parliament ; 
according to you, none of their special provisions are repealed.] The 
order is sufficient under either of the statutes in question. * The pay- 
ment might be made to the clerk of the peace for the justices ; and to 
order payment «« forthwith" is saying <( within what time" payment 
shall be.(a) [GoLBiftiDGBy J. — It is clear you have drawn your order 
under the old statute.] 

Peacock^ contr&, was stopped by the Court as to the point of laches. 
—If the order is bad, the removal ex parte does not exempt it from ob- 
jection. And it is bad, as hot conforming to stat. 11 & 12 Vict. c. 48, 
s. 27. [Patteson, J. — That clause applies to <(8uch conviction or order 
as aforesaid." Is this one of <tsuch" orders?] Sect. 1 of the statute 
applies to summary convictions and orders gcinerally. Some sections 
which follow (b) except from their provisions the cases in which special 
enactments have been, made on the subject by prior ^statutes; r^c^Qf' 
but there is no similar reservation in sect. 27. << Such," there, ^ 
applies to orders generally, and to all cases in which the sessions may 
give costs on dismissal of an appeal. They have no such power unless 
under some statute; and this clause applies to all not specially ex- 
cepted. [CoLBRiDGB, J. — Sect. 85 makes some special exemptions, not 
affecting this case ; and sect. 36 repeals, generally, all <« Acts or parts 
of Acts which are inconsistent with the' provisions of this Act."] Stat. 
9 G. 4, c. 61, s. 29, is so. Under that, the party liable to pay costs 
might, on default, be committed till they were paid : by the present 
Act the committal cannot exceed three months, and that only in default 
of sufficient distress. Under the forpaer Act payment was to be made 
to the justice or such person as he should appoint : under this, a publie 
officer is directed to receive the costs in all cases. [Coleridge, J. — I 
suppose that if the fi. fa. be set aside, and the money levied be returned, 
you will be satisfied without taking further proceedings.] The appel- 
lant ought to have the costs which he has been put to by the removal: 
of the order. [Patteson, J. — The order was rightly brought up. 
CoLBBiDGB, J. — The fi. fa. and all proceedings thereon should be- set 

(a) Sm Arnold «. DimKUle, 2 B. & B. 5S0, SOI (B. C. L. K TtL n^ 

(6) Seeaectfl. 11, 17.' . 

VOL. XVII. — 21 2 



285 REGINA v. HELLIER T. T. 1851. 

aside, and the 242. 17t. 6d. and the costs levied be refonded.] On those 
terms the defendant will undertake to bring no action. 

Pattbson, J. (a) — The proceeding to enforce an order, nnder stat. 12 
k 18 Vict. c. 45, s. 18, is given «« upon the application of any person 
entitled to enforce snch order." If the order is brought np, and tbe 
application made, the adverse part j may object to the order itself (bat 
*9^f)1 ^^^ S^ farther back), though there could have *been no certiortri. 
^ The question then, upon the objection here taken, is whether 
Stat. 9 O. 4, c. 61, s. 29, is repealed by stat^ 11 k 12 Vict. c. 43, b.27. 
And I think we must take it to be so. The object of this Act wss to 
frame a general rule ; and, though the words «8uch" conviction or order 
as aforesaid are used, I think they mean any conviction or order of 
magistrates haying summary jurisdiction. The intention of the Act could 
not otherwise be carried into effect. Then, under this Act, the order,- 
whether in favour of appellant or respondent, must, direct the payment 
to be made to the clerk of the peace, and within a time specified, under 
penalty of committal for any time not exceeding three calendar montbs 
unless the costs be sooner paid. Sect. 86 repeals certain atatntes bj 
name, and all Acts or parts of Acts inconsistent with the provisions of 
this. But a clause which directs payment to the justice, and, in de&alt 
of payment forthwith, authorises imprisonment till the costs be paid, is 
inconsistent with the enactments of stat. 11 k 12 Vict. c. 48, s. 27, and 
must therefore be considered as no longer in force. The only question 
then is, whether it is now too late to impeach the validity of the order. 
There is nothiiig to disable this party from so doing, except that he has 
paid 10^ of the original costs. But the order was not removed into 
this Court till February « 8th, when he had no opportunity of contesting 
it but at chambers ; and there I thought I could not interpose, and left 
the party to his remedy in this Court ; indeed the whole matter was not 
then before me. I think he had done all he could, and was not charge- 
able with laches in submitting to the fi. fa. He paid part of tbe 
costs ; but it was under an order of Sessions, and under pain of being 
sent to prison if he did not pay. Assuming that he might legally have 
*9^71 *^^^P^^^^ ^^^ ^* ^''^'9 ^^ ^^® ^^^ ^^ suppose him so well acquainted 
-* with the law that, by not having done so, he should now be 
estopped. 

COLBRID0E, J. — There was no laches. The only question is whether 
the order of Sessions can be objected to. Certiorari does not lie ; and 
the rule to bring up an order under stat. 12 k 18 Vict. c. 45, s. 18, is 
obtained ex parte ; if cause could be shown against it, the matter nov 
alleged would surely be good cause. Then why may not the same 
ground of objection be taken on a substantive application ? Can it be 
said that, if the Sessions had authorized an extravagant and illegal fine, 
a fi. fa. grounded upon their order could not. be set aside here ? T^ e 

(a) Lord Campbelli C. J., hmd left the Court. 



17 ADOLPHUS ft ELLIS. N. 8. 237 

objeetion itself appeftre to me yalid. The intention of stat. 11 k 12 
Viet. e. 48, is to consolidate former Acts and laj down general rules &s 
to orders of magistrates out of Sessions, and appeals to Sessions against 
Bach orders, instead of the various enactments which have been made 
from time to time. The regulation in sect. 27 is a general one, and at 
yuiai)ce with stat. 9 O. 4, c. 61, s. 29, in the particulars which have 
been pointed out; and, by sect. 86 of the later Act, statutes inconsistent 
with this Act are repealed. . 

EsLLE^ J. — ^This party has applied promptly enough : he could not do 
80 before the order of Sessions was brought up : as soon as that was 
done, he moved to stay execution. I think that stat. 9 O. 4, c. 61, s. 
29, is repealed by the later Act as inconsistent with it in the several 
particulars of payment to the Clerk of the peace, appointment of a time 
by the order, and imprisonment for a limited period, and that only in 
default of distress. *The order of Sessions, therefore, was t^ioqq 
illegal ; and, it being brought here, our duty is to enforce the *- 
rights of parties according to law. The illegal order was nothing ; and 
our proceeding to enforce it ought to be set aside. 

Bule absolute to set aside the fi. fa. and all proceedings on the 
order of Sessions ; no further proceeding to be taken to enforce 
the same; defendant undertaking to bring no action if the 

, money paid under the fi. fa., and the 10^, be refunded within 

j a fortnight. 



The QX7EEN v. SOAIFE, SMITH, and ROOEE. June 2. 

If the d«pot|tloii of a vitDeai on ehargo of mi SndieUible offenoe haf been rogalarly takra befon 
a magiatrato, and at the time of trial nieb witaeai is dead or (tUt 11 & 12 Viet o. 42, s. 17) 
10 ill as not to be able to travel, the depodtioo may be read aa eridenee against the prisoner. 
So also if it bo proTod that the witness la bept away by the prisoner's proenrement 

Bat sneb deposition is not admissible on the gronnd, merely, that the prosecutor, after osing 
e? ery possible endeaTonr, eannot find the witness. 

If proearemont of the absence be shown, and there are sereral prisoners, the deposition is otI- 
denee against those only who are proved to have procored the absence. 

And, where the Jodge, admitting sach evidence, left it generally to the jary, and did not point 
oat that it applied only to those implicated in procoring the absence (there being some who 
were not so implieated), and the latter were coaTieted, the Coort granted a new triaL 

A new trial was granted on this ground in a ease of felony removed by certiorari. 

This was an indictment for robbery with violence, removed by cer- 
tiorari from the Hull borough sesaione, and tried before Oreeswell, J., 
at the last York assises. The prboner Smith was defended by one 
counsel, and Scaife and Rooke by another. On the part of the Crown, 
a deposition by one Ann Garnett was tendered in evidence. It had 
been regularly taken before a magistrate, in the presence of the prisoners. 
The witness did net appear at the assises ; and it was proved that due 
search bad been made for her on the part of the prosecution, but that 



238 RBGINA v. SCAIFE. T. T. 1861. 

0Qocn ^^® ooald not be found. ^There was evidence also tbai she was 
^ kept awaj by the procurement of Soiith ; but this evidence did 
not implicate the other prisoners.- The reading of the deposition wts 
objected to by the counsel for Smith ; but the learned Judge admitted 
it, subject to the objection, being of opinion that the procurement by 
Smith was proved ; and, in summing up, he left Garnett's statement, 
among the other evidence, to the jury, not telling them that the deposi- 
tion could affect Smith only. The jury found a verdict of Guilty against 
Scaife and Rooke, and acquitted Smith. A rule nisi was obtained in 
the ensuing term for a new trial, on the grounds of improper reception 
of evidence, and misdirection. 

ffunter now showed cause. — In^ the first place, it has been laid down, 
generally, that the deposition of a witness <« in an English Court in a 
cause betwixt the same parties plaintiff and defendant may be allowed 
to be read to the jury, so as the party make oath that he did bis en- 
deavour to find his witness, but that he could not see him nor hear of 
him ;" Anonymous case in Godbolt, S26. No distinction is there made 
between civil and criminal cases ; and the reason given is, <« that if the 
party cannot find a witness, then he is as it were dead unto him/* It 
is also said in Com. Dig., Evidence (C 4), that the deposition of a wit- 
ness (though evidence! in equity) «« shall not be evidence at law, except 
where the witness is dead," «' or, cannot attend by reason of sickness, 
or cannot be found." And in Bull. N. P. 239, it is laid down that de- 
positions t< may be read when a witness is sought and cannot be found, 
*2401 ^^^ ^^^° ^^ ^^ ^^ ^^^ same ^circumstances, as to the party that is 
^ to use him, as if he were dead." In 1 Taylor on Evidence, 332, 
sect. 349, after referring to the dictum in Godbolt, it is said: ^«In 
criminal proceedings it would seem that a similar latitude is not allow- 
able, since the Judges, in Lord Moreley's Case, 6 How. St. Tri. 769, 
771, 6th resolution, resolved, that the examination of a witness taken 
before the coroner was not rendered admissible, on mere proof that the 
witness himself could not be found after diligent search." That reso- 
lution expressly referred to depositions before the coroner, at which the 
prisoner might probably not have been present : and the Judges maj 
have taken into charitable consideration that 4he prisoner could not 
have any witness examined on oath for him. In a modern case, Begins 
V. Hagan, 8 Car. & P. 167 (E. C. L. R. vol. 84), Coltman, J., refused 
to admit, on behalf of the Crown, the deposition of a witness who had 
gone to sea since his examination and could not be produced ; but he 
received it on behalf of the prisoner, with the consent of counsel for 
the Crown. This description of evidence is so likely to be often re- 
quired for the purposes of justice, as well on behalf of prisoners as on 
that of the Crown, that convenience as well as reason is in favour of 
admitting it : and it is not excluded by the rule <« that no sueh evidence 
shall be brought, that ex naturfi rei supposes still a greater evidence 



17 ADOLPHUS & ELLIS. N. S. 240 



[»241 



belimd in the party's possefision or power ;" Bull. N. P. 298. Bii^, 
secoDdly, the'admissibilitj of depositions is clear when the witness is 
kept oat of the way by means or procurement of the prisoner. This 
is expressly the 5th resolution in Lord Morley*s Case, 6 How. St. Tri. 
770; and examinations were admitted on that ground in Henry Harri- 
sons ♦Case, 12 How. St. Tr. 883, 851, 2. In Regina v. Gut- 
tridge, 9 Car. ft P. 228, 471 (E. C. L. R. vol. 88), Parke, B. said : 
"If it bad been proved, on the part of the prosecution, that Ellen 
ConoIIy was kept out of the way by the prisoner,(a) I should have al- 
lowed her deposition to have been given in evidence against them ; but 
that is not proved.*" The law on this subject is stated accordingly in 
1 Taylor on Ev. 884, 5, where several authorities are referred to, and 
Mr. Taylor assigns as the reason for this rule, that "justice" <^ will not 
permit a party to take advantage of his own wrong." In Oreen v, 
Gatewick (Bull. N. P. 248), there cited from Bull. N. P., "a witness 
was sworn in a trial at bar in G. B. between the same parties on the 
same issue, and he was subpoenaed by the defendant to appear at a 
second trial in K. B. and his charges given him, but he not appearing 
person^ were admitted to swear what he swore in C. B., for the Court 
said they wouid presume he was kept away by the plaintiff's practice. 
This supposition was strengthened by his having been produced by the 
plaintiff at the former trial." [Lord Campbell, C. J. — In the present 
case, was the learned Judge satisfied that the witness had been kept out 
of the way by the contrivance of Scaife and Rooke ? Coleridge, J. — 
His report is : <( I received the evidence, subject to the objection, think- 
ing there was evidence of the witness having been removed by the pro- 
curement of Smith." Lord Campbell, C. J. — How do yon meet that ? 
Conld the procurement by Smith make *the evidence admissible r^^oj^o 
against Scaife T] The prisoners were shown to have acted in ^ 
concert. 

Deartltfj contri. — The evidence of concert related to the felony, not 
the procurement. [Lord Campbell, C. J. — The argument on the other 
side is, that, if there be any evidence of joint acting towards the felony, 
the procurement by one prisoner makes the deposition evidence against 
all. CoLBRiDGB, J. — The learned Judge ought to have told the jury, 
in summing np, that the deposition was not evidence against any pri- 
soner but Smith. Did he make use of that evidence as against all ?] 
(Hunter admitted that the learned Judge did not make any observation 
confining the application of this evidence.) There is no authority for 
the position that, in criminal cases, a deposition may be used as evi- 
dence merely because the witness cannot be found. The only cases in 

(a) Tbe trial hsd been postponed at a preTioai auiie on affldaTit stating that deponent haa 
nuoD to beliera that Ellen Conolly, who shoald have been proaeentrix, was Indaoed to keep ovt 
ef the way in eoiiaideration of a snm of money s;iTen her by two of the prisoners ; Regina • 
GotthJge, 9 Car. A P. 22S (E. C. L. R. toL 88). 



242 REGINA v. SCAIFE. T. T. 1851. 

which it may be admitted, on trial of an indictment, are stated, in 2 
Buss, on Cr. 889, 890 (Sd ed.), Book yu c. 4, s. S, to be, where the wit- 
ness is dead, or insane, or where he is so ill that there is no probability 
of his ever being able to attend, or where he has been kept awaybj 
the practices of the prisoner. 

Lord Campbell, C. J.— This rule must be absolute. The prisoner 
Smith had resorted to a contrivance to keep the witness out of the waj; 
and therefore the deposition was admissible evidence against him : bat 
it was not so against the other two prisoners : and the learned Judge, 
in his summing up, did not make the distinction in favour of these two. 
Then, a question has been made, whether depoeitiona of *a witness who 
^oAQ-} '^ ^^^ ^^^ ®^ ^^P^ away by the prisoner's contrivance *may be 
-' received when the witness is not to be found. No case goes so 
far ; and I should be afraid to lay down such a precedent. Beceiving 
evidence of this kind is subjecting the prisoner to prejudice from, the 
statements of a witness whom he has not the advantage of cross-ex- 
amining at the trial. 

Patteson, J. — If there was sufficient evidence that a prboner had 
procured the witness's absence, that might let in the deposition as eri- 
dence to be heard. But no distinction appears to have been made'be- 
tween the prisoner against whom the deposition was admissible and 
those who could not be affected by it. 

CoLERiDas, J. — I always. understood, before the late statute, that, 
if a witness was dead or insane, or kept away by the procurement of 
the prisoner, his deposition was admissible, if properly taken ; but that 
other absences were all under one i^tegory, and were not grounds for 
admitting the evidence. The late Act (a) takes one case out of the 
category, namely that of disability by sickness. But, if a mere una- 
*Q4.d1 ^^^^^^^® absence of the ^witness had been sufficient excuse, that 
-* provision would have been superfluous : sickness was an innocent 
cause of absence, and the absence necessary. Therefore this enactment 
is, negatively, a strong declaration against the admissibility of depoai- 
tions on the ground here taken. 

Erle, J. — There was no evidence of procurement by any prisoner 
but Smith : and the mere fact that the witness could not be found was 
not sufficient to make her deposition admissible. 

Deartly suggested that there was a difficulty in ascertaining what 

(o) Stat 11 A 12 Viot 0. 42, >. 17, after direoting how depositions shall be taken on ehuft 
of any indictable offenoe, adds : " And if upon the trial of the person so aooosed as first sforetaid 
it sbidl be proved by the oath or afflrmation of anj eredible witness, that any person wbos* 
deposition shall have been taken as aforesaid is dead, or so ill as not to be able to travel, sad if 
also it be proved that soeh deposition was taken in the presence of the person so afocused, ssd 
that ho or his counsel or attorney had a full opportunity of cross-examining the wltoets, dica, 
if such deposition purport to be signed by the justice by or before whom the same parporti w 
have been taken, it shall be lawful to read snoh deposition as evidence in snch proaeention, with- 
out further proof thereof, unless it shall be proved that sueh deposifioD was not in £aet signed bj 
the justice purporfing to sign the luinie.'' 



17 ADOLPHUS k ELLIS. N. S. 244 

role shoald be drawn up, no precedent having been foand for a new 
trial in a case of felony. 

Lord Campbell, 0. J. — That might have been an argument against 
oar hesriog the motion. 

The Court, after conferring with the Master of the Grown Office, 
iDftde the Rule ab8olute.(a) 

(a) The pritoaen were tried again. Aa to fbrtber proeeedingi in the onao (which did not hear 
ipop the point above reported), aee Begina v. Soaife, Jone 10th, 1862, poet 



The QUEEN v. The YORK, NEWCASTLE and BERWICK RaU- 

way Company. 

Reported, 16 Q. B. 886 (£. C. L. R. vol. 71). 



♦Between PHILIP DAVIES COOKE, Plaintiff, rio..c 
and L*246 

Sir ROBERT HENRY CUNLIFFE, and PHILIP BRYAN DAVIES 
COOKE, an infant, by Sir WILLIAM BRYAN COOKE, Baronet, 
his guardian. Defendants. 

IL bj wiU doTieed Iter estates to her son-in-law B. for life, remainder to her daughter F. his wife 
for life, remainder to trustees to presenre oontingent remainders, remainder to the use of the 
shildren of the marriage as B. and F. should Jointly appoint by deed, or as the survivor should 
appoint by deed or will, and, in default of appointment, to the use of trustees for a term* of 
500 years, to oommenee on the death of the survivor of B. and F., and, sobjeet thereto, to 
the use of P., eldest son of B. and F., in strict settlement The trusts of the term were^ 
1st, on reqneet of B. and F. to raise 10,000 £. for B. and F., and 2dly, to raise for each younger 
child of B. and F., any sums not exceeding lOOOZ. apiece, as B. and F. Jointly by deed, or 
the survivor by deed or will, should appoint, and in default of appointment, 1000^ apiece, pay- 
able after the decease of the survivor of B. and F., unless they or the survivor should appoint 
the same to be raised in his or her lifetime, in which ease the term was to commenoe on such 
last-mentioned appointment 

F^ the wife, died, leaving B. her surviving, without having Joined in any appointment under the 
will ; and leaving four sons bosides P., and a daughter. On the marriage of the daughter, B. 
by deed appointed to her 1000/. payable on his decease. After this B. made his will, by which 
he gave a legacy to his daughter, and to each of his other younger children bequeathed ** such 
a sum of money as with" what they are entitled to under (amongst other settlements referred 
to) ** the will of BL, will make up to each 8000/. :" and ** all the residue of my personal estate 
and all my real estate over which I have any disposing power, I give," Ac, to P. and his heirs. 
At the time when this will was executed, B. resided on an estate derived from his own family, 
which waa partly settled and partly held in fee. 

Held : That tlia devise of ** all wy real estate over which I have any disposing power" was under 
the cireomstances to be construed as a devise of the unsettled patrimonial estate of B., and 
did not opomie as an execution of the limited power of appointment over the estates which he 
held aa tenaiit for life under BL's wilL 

Bt an order of Vice-chancellor Knight Bruce in this cause, a case, 
of which the substance is stated below, was sent for the opinion of this 
Court. 



245 COOKE V. CUNLIPPB. T. T. 1861. 

Mary Pulestone, being seised in fee simple of the castle and manor 

♦24f51 ^' lordship of Ewloe in Flintshire, and ♦other lands in the coon- 

^ ties of Flint and Denbigh, made her will, dated 19th September, 

1802, duly executed in manner then required by law. This willwts 

set out in the case. 

By it she devised her estates to the use that two trustees named 
ahould, during the joint lives of Bryan Cooke, her son-in-law, and her 
daughter Frances, his wife, raise 4002. per annum for her said daughter; 
subject thereto, to the use of the said Bryan Cooke for life ; remainder 
to the use of the said Frances Cooke for life ; remainder to trustees to 
preserve contingent remainders. 

t( And, from and after the decease of the survivor of them the sud 
Bryan Cooke and Frances his wife, to the use and behoof of all and 
every or such one or more of the child or children of the body of the 
said Bryan Cooke pn the body of my said daughter Frances Cooke hit 
wife begotten or to be begotten, for such estate or estates and interest, 
either with or without power of revocation, and in such parts, shaces, 
and proportions, and with such terms ^nd provisions for the portions 
and maintenance or for the benefit and advancement of any such child 
or oliildren, as they the said Bryan Cooke and Frances his wife shall 
jointly, at any time during their joint lives, by any deed or deeds, 
writing or writings, to be by both of them signed, sealed, and delivered 
in the presence of two or more credible witnesses, or as the survivor 
of them shall, in default of any such joint appointment, by any deed or 
deeds, writing or writings, to be signed by such survivor after the de- 
cease of one of them, in the presence of the like number of such wit- 
nesses, or by his or her last will or testament in writing, to be signed, 
*9471 P^^l'^l^^^' ^^^ declared in the ^presence of three or more such 
^ witnesses, devise, direct, limit, or appoint ; and, in default of all 
or any such devise, 'direction, limitation, or appointment, or, if any such 
shall be made, when and so soon as the estates and interests thereby to 
be limited, devised, or appointed shall respectively end and determine, 
and as to such part and parts of the same premises whereof no such 
devise, direction, limitation, or appointment shall be made," to the use 
of Anthony Hardolf Eyre and Saint Andrew Ward, their executors, 
administrators, and assigns, for a ««term of 500 years to commence 
from the decease of the survivor of them the said Bryan Cooke and 
Frances his wife," without impeachment of waste, upon the trusts after 
mentioned. And, from and after the expiration or other sooner deter- 
mination of the said term of 500 years, and, in the mean time, subject 
thereto and to the trusts thereof, to the use of Philip Davies Cooke, 
eldest son of the said Bryan Cooke by the said Frances Cooke his wife 
(meaning the said plaintiff Philip Davies Cooke), in strict settlement, 
with remainders over to the second and other sons of Bryan Couke and 
Franc(;s bis wifj. 



17 ADOLPHUS & ELLIS. N. 8. 247 

The trasts of the term of 600 jears were declared to be, upon trusty 
▼hen thereanto required bj the said Bryan Cooke and Frances his wife 
at any time during their joint lives/ to raise by mortgage or sale of the 
said term of 500 years, or of all or any of the said hereditaments and 
premises so limited for the said term, any sums not exceeding in the 
whole 10,000{., and pay the same unto the said Bryan Gooke and 
Frances bis wife for bis and their own proper use and uses. <« And 
upon further trust, in case there shall happen to be one or more child 
or children of the body of the said Bryan *Cooke on the body r^nAo 
of the said Frances Oooke his wife begotten or to be begotten, '- 
other than an eldest or only son, or such other son of the body of my 
said daughter, either by the said Bryan Cooke or by any such after 
taken husband or husbands as aforesaid, as may by virtue of the trusts, 
devises, or limitations herein contained become entitled to the posses- 
sion and inheritance of the said premises hereby given or devised unto 
or in trust for my said daughter during her life as aforesaid ; then upon 
trust that they the said Anthony Hardolf Eyre and Sain( Andrew 
Ward, or the survivor of them, or the executors, administrators, or 
assigns of such survivor, do and shall by sate or mortgage of my. said 
castle, manors, &c., or by the perception of the rents and profits of the 
same for all or any part of the said term of 600 years, or by such other 
ways and means as they shall think fit, so as not to impeach or preju- 
dice the raising and payment of the said yearly rent of 4002. hereby 
before limited to or provided for my said daughter Frances Cooke," 
raise any sums of money not exceeding the sum of 1000{. apiece, over 
and above the costs, charges, and expenses attending the raising there- 
of, for or towards the portion or portions of such child or children (ex- 
cept Philip Davies Cooke, or such other son of Frances Cooke as might 
after her decease be entitled to the immediate possession and inherit- 
ance of the said premises), to be paid and payable to such child or 
children at such time and in such proportions as Bryan Cooke and 
Frances his wife shall by any joint deed or deeds executed in the pre- 
sence of two witnesses jointly appoint ; and, for default of such joint 
appointment, then at such time and in such proportions as the survivor 
by his or her deed or deeds executed in the presence of two witnesses, 
or by his or her last will, &c., should ^appoint ; and, in default r^nAQ 
of such appointment, then upon trust to raise << the said sum of '- 
10002. apiece for or towards the portion or portions of all such children 
of my said daughter Frances Cooke not being an eldest son as afore- 
said :" the portions of sons to be paid at the age of twenty-one, and 
the portions of daughters to be paid at the age of twenty-one or mar- 
riage, <* which shall first happen, if such respective times of payment 
shall happen after the death of the said Bryan Cooke and of my said 
daughter Frances Cooke ; but, if in the lifetime of them or either of 
them, the same to be paid within six months next aft^ the decease of 
VOL. XVII. — 22 P 



249 COOKE V. CUNLIPFE. T. T. 1851. 

L-^ 

the Barvivor of them ; unleaa the said Bryan Cooke and Franeee his 
wife or the survivor of them shi^ll direct or appoint the same to be 
raised in his or her lifetime, which they respectively may do if be, sbe, 
or they shall so think proper; and in such case the said term of fi?e 
hundred years shall commence and take effect from the time of such 
direction or appointment as last aforesaid." There were powers for 
the maintenance and advancement of the children while minors. 

The case then proceeded as follows. 

The said testatrix Mary Pulestone died on or about the 28d of Sep- 
tember, 1802, without having revoked or altered her said will. The 
said Frances Cooke, the daughter of the testatrix, died on or about the 
8th of January, 1818, leaving the said Bryan Cooke her surviving, and 
without having joined with the said Bryan Cooke, her said husband, in 
requiring the trustees of the said term of five hundred years, limited 
by the said will of the testatrix Mary Pulestone as aforesaid, to raise 
the said sum of 10,0001., or any part thereof, or in exercising any power 
or authority given to them jointly by the said will. The said Bryan 
^ofifi^ Cooke, the ^father of the plaintiff Philip Davies Cooke, dolj 
^ made, signed, and published his last will and testament in writing, 
bearing date 17 th April, 1821, and executed by him in the presence of 
and attested by three witnesses, and which was set out. The material 
part was as follows. 

«( This is the last will and testament of me, Bryan Cooke of Onston 
in the county of York, Esquire. I give and bequeath the sum of 20002. 
to my daughter Frances Mary, wife of William Margesson, Esquire; 
and I direct that my executors hereinafter named do pay the said aum 
of 20002. into the hands of the trustees for the time being of my said 
daughter's settlement, to be invested by them in their names in govern- 
ment or real security, to be held by the said trustees on the same trusts 
and to and for the same ends, intents, and purposes as are expressed in 
the said trustees of my daughter's portion thereby vested in the said 
settlement. I give to each of my younger sons such a sum of^monej 
as, with the fortunes which they are entitled . to under the settlement 
made on my marriage with their mother, and under the wills of their 
late grandmother Mrs. Mary Pulestone, and their late aunt Mrs. Frances 
Pulestone, will make up to each 8000{. : and in case my personal estate 
shall be insufficient to pay the said several legacies I charge my real 
estates with the payment thereof: but, in the event of my said sons 
dying under the age of twenty-one years, I will that the legacy of such 
son so dying shall sink into my residuary personal estate. I direct 
that, until such legacies are paid, they shall carry interest at SL per 
cent, from the time of my decease." 

He then bequeathed several legacies ; and the will proceeded. « All 

^^-^^ the residue of my personal estate and *all my real estate over 

-* which I have any disposing power I give, devise, and bequeath 



17 ADOLPHUS A ELLIS. N. S. 251 

to mj eldest eon Philip Davies Cooke" (meaning thereby the plaintiff), 
((his beira or aesigns, or, in the event of his decease in my lifetime, to 
saeh other of my sons as shall be my eldest son at the time of my 
decease, and to his heirs and assigns ; and I appoint my son IMiilip 
Davies Cooke, the said Anthony Hardolf Eyre and William Bryan 
Cooke, and the sarnvor of them, guardians and gnardian of my children 
daring their respective minorities ; and I give, devise, and bequeath all 
estates of which I am seised and possessed in trust or by way of mort- 
gage unto the said Anthony Hardolf Eyre and William Bryan Cooke, 
their executors, administrators, and assigns, according to the natures 
of the same estates respectively, upon trust to reoonvey or transfer the 
same to the several persons who are or shall be beneficially entitled to 
the same, or to such uses and upon suo^ trusts as they respectively 
shall direct." 

The said Bryan Cooke died on or about the 14th December, 1821, 
without having revoked or altered his said will. 

At the date of his said will the said Bryan Cooke resided in the 
mansion on the family estates situate in the county of York, which were 
considerable, and of which he was tenant for life under settlements exe- 
cuted on his marriage with the mother of the plaintiff; and the said 
testator was at the date of his said will seised in fee simple of other 
estates adjoining the said family estates. 

There was issue of the body of the said Bryan Cooke on the body 
of the said Frances Cooke his wife begotten, five ^children, vis., 
his eldest son, the plaintiff Philip Davies Cooke, and four younger 
children, Robert Bryan Cooke, Anthony Cooke, William Bryan Cooke, 
and Mary Frances Cooke, all of whom attained twenty-one. The said 
Mary Frances Cooke, in the lifetime of the said Bryan Cooke, and 
before the date of his said will, that is to say in the month of May, 
1818, intermarried with and became the wife of the Reverend William 
Margesson ; and on'that marriage, by an indenture dated 19th May, 
1818, and made or expressed to be made between the said Bryan Cooke 
of the one part and the said Mary Frances Cooke of the other part, 
and which was executed by the said Bryan Cooke in the presence of two 
witnesses, the said Bryan Cooke, pursuant to and by force and virtue 
and in exercise and in execution of the powers or authorities vested in 
him the said Bryan Cooke under and by virtue of the said will of the 
said Mary Pulestone, and of all other powers and authorities enabling 
him the said Bryan Cooke in that behalf, did direct, limit, and appoint 
that the sum of lOOOi. should, upon the decease of him the said Bryan 
Cooke, be raised out of the estates devised by the will of the said Mary 
Pulestone for the portion of the said Mary Frances Cooke, and should 
become a vested interest in her the said Mary Frances Cooke upon the 
execution of the now stating indenture^by him the said Bryan Cooke. 
The lOOOL portion of one of the younger sons of the said Bryan 



[♦262 



COOKE V. CCNLIFPB. T. T. 1861. 



Oooke remains unpaid. The portions, of lOOOI. each, of Brjan Cooke's 
other younger children have been paid to them by parties who have 
taken assignments of sach portions. 

^Q-n-| These portions of 1000^ each were referred to by *the testator 
-' Bryan Cooke in that part of his will in which he referred to the 
Will of Mrs. Mary Pulestone, the late grandmother of his yoonger 
sons. 

The questions for the opinion of thb Court were by the Vice Chan- 
cellor's order directed to be : 

1. Whether the said term of ^ve hundred years limited by the said 
will of the said Mary Pulestone is a subsisting term. 

2. Whether the said Philip Davies Cooke is seised for an estate of 
inheritance in fee simple of t^e said castle, manor, lands, and heredita- 
ments so devised by the said will of the said Mary Pulestone as afore- 
said, subject to the said term or otherwise, or whether he is only tenant 
for life of the same hereditaments. 

MalifUy for the plaintiff. — The question is whether the will of Bryan 
Cooke is an execution of the power conferred on him by the will of 
Mrs. Pulestone. No formal or technical words are necessary for the 
due execution of a power. All that is required is that an intention in 
the donee of the power to execute it should appear ; and for that pur- 
pose it is sufficient if the words used refer either to the power itself, or 
to the subject-matter. In the present case the devisor clearly intended 
to give the plaintiff all he could. He gives him " all my real estate ;" 
that taken alone includes everything strictly the devisor's; he then 
adds words which, if he intended to give him also the real estate not 
properly his, but the subject-matter of the power of which he was the 
donee, are a concise but effectual reference to it : on any other sup- 
position they are surplusage. He says ««A11 my real estate over 
*2^41 ^^^^^ ^ ^^^® ^^7 disposing power." [Lord Campbbll, C. J. — 
^ In *your construction you give no effect to the word " iwy."] 
Had the words used been << aU the real estate over which I have any 
disposing power," the case would have been too clear for argument. 
And when a person has an interest in an estate, << my" and «< the" as 
applied to it are convertible terms ; Standen v. Standen, 2 Yesey, Jon. 
589, Bailey v. Lloyd, 6 Buss. 880. [Lord CampbblIi, C. J. — Undoubt- 
edly the words << my estate" may be used so as to show that the testator 
meant by them «< the estate" not strictly his ; but it must depend on 
the context. You cannot lay it down as a general canon of interpre- 
tation that the word «< my" used in a will is equivalent to «< the."] The 
words «<over which I have any disposing power" are in themselves 
equivalent to << over which I have a power of appointment ;" so that a 
part of the will would be inoperative unless applied to the power ; and 
the case is brought within the principle of Wallop v. Lord Portsmouth, 



17 AD0LPHU8 k ELLIS. N. S. 254 

reported in Sagden on Power8y(a) and of Bennett v. Alburrow, 8 
Veeey, 609. 

Peaeoeky contrd. — The leading ease on this sabject is Roake v. Denn, 
4 Bligh N. S. !•(&) There Alexander, G. B., delivering the unanimous 
opinion of the Judges in the House of Lords, says :{e) «( There are 
many cases upon this subject, and there is hardly any subject upon 
which the principles appear to have been stated with more uniformity, 
or acted upon with more constancy. They begin with Sir Edward 
Clere's Case, 6 Bep. 17, in the *reign of Queen Elisabeth, and r^ontt 
are continued down to the present time ; and I may venture to ^ ^ 
say, that in no instance has a power or authority been considered as 
executed, unless by some reference to the power or authority, or to the 
property, which was the subject of it ; or unless the provision made 
by the person intrusted with the power would have been ineffectual, 
woald have had nothing to operate upon, except it were considered as 
an execution of such power or authority." This opinion, which was 
adopted by Lord Lyndhurst, C, and Lord Tenterden, may be consi- 
dered as the law on the subject. Each of the cases cited in the argu- 
ment for the plaintiff will be found to be an application of the principles 
there laid down. 

In the present, case, it is conceded that there is no direct reference 
to the power. Is there, then, any reference to the subject-matter of 
the power ; or (which may be said to be the same question) is there 
anything not the subject-matter of the power which will satisfy the 
description in the will ? To answer this, the state of facts must be 
looked to. Bryan Cooke, at the time when he made his will, had 
estates in Yorkshire, on which he resided, which came from his father's 
fiunily, and were properly speaking his. Part of those estates were 
settled so that he had no power to dispose of them at all. Part were 
his in fee sinaple; and he had complete disposing power lover that por- 
tion. There were also the Welsh estates, which had belonged to his 
deceased wife's mother, and in which he had, under her will, a life 
interest, and a power, not to dispose of them absolutely, but to appoint 
them among a class, his sons. Under these circumstances, he devises 
to the plaintiff " all my real estate over which I have any disposing 
power." Had the plaintiff not been one of the class in whose r^neg 
^favour a power under Mary Pulestone's will could be exercised, ^ 
for instance supposing he had been a nephew, these words would have 
all been satisfied. It would then have been clear that the testator 
intended by this description to give him his unsettled Yorkshire estate. 
The plaintiff is a son, one of the class in whose favour a power over 

(a) 7Ui ediUon, toL 1, p. S77, toI. t, p. M7. 

(6) Afiratas th« Judgment of K. B. in Denn «f. Ronke. ft B. a 0. 7S0 (B. 0. L. R. toL l\\ 
vUeh ivTenad fthe JndgaifBt of the Oonmom PImi in Dot dom. VowoU •• Bonko, % Binf . 497 
(I. C. L. R. ToL 9). 

(•) 4 BUffk N. 8. 17. 



266 COOKE V. CUNLIFPB. T. T. 1861. 

i __« 

the Pulestone estates could be exercised ; bat tbere is nothing to show 
that the intention of the testator was to exercise the power. On the 
contrary, the manner in which he provides for his jonnger sons shom 
that he did not intend to exercise it. They were entitled to KMKH. 
apiece under the trusts of a term, which was not to arise except in 
default of the exercise of this power. The testator knows this : he 
does not in an inartificial manner appoint that they shall take lOOOL, 
or any other sum, but gives them from other sources so much monej 
as may, in ^ addition to what they are entitled to under the will of 
their late grandmother,'* make up 8000^ It is in effSsct as if he bad 
said, << If I do not exercise the power I possess, they will each have 
something ; I do not exercise that power, and I give them more." It 
is also somewhat doubtful whether, after the power to give a fortune 
had, during the testator's life, been exercised in favour of the daugh- 
ter, the antecedent power to appoint the fee to the son could be exe^ 
cised. It certainly would no longer be so exercised as to prevent the 
term for 500 years from coming into operation. But, whether the 
testator could exercise the power or not, it was clear that it is not his 
intention to do so : and the onus lies on the plaintiff to show such an 
intention. Slight circumstances will not suffice ; 1 Sugden on Powen, 
870 (7th ed.). 

*2571 ^^i^^i ^^ reply. — The appointment of a portion under *the 
-> term of 500 years in favoui^of one daughter is not inconsistent 
with the exercise of the power, subject to that term and that portion. 
The term may be transposed. 

Lord Oampbbll, C. J. — It has long been well settled that the donee 
in exercising a power must show an intention to. exercise it, either bj 
directly referring to the power or by referring to the subject-matter of 
it. In the present case there is no direct reference to the power ; and 
I think there is no sufficient reference to the subject-matter. The tes- 
tator uses these words : << all my real estate over which I have any dis- 
posing power I give" <« to my eldest son" (the plaintiff), his heirs or 
assigns. He had, at the time he used those words, estates of his own, 
family estates coming from his own ancestors, and on which he resided; 
part of them were under settlement, and part were at his absolute dis- 
posal : and every word in this will is satisfied by supposing that he 
referred to those patrimonial estates over which he had complete dis- 
posing power, and not to the Pulestone estate over which he had a 
limited power of appointment. The reference to the subject-matter of 
a power must be unequivocal, to have the effect of making a devise be 
an execution of it. In the present case, if it were necessary, I should 
have no hesitation in saying that the will clearly showed an intention 
not to exercbe the power. For it is clear that the testator intended to 
allow the term for 500 years to exist, and that the younger children 
should take the portions under it. It is, at least, highly improbable 



17 ADOLPHUS & ELLIS. N. 8. 267 

thftt he should under such circumstances intend to exercise a power 
antecedent to the term, and which, primft facie, wonld seem, if exer- 
cised, to defeat the term : but it is clear that^ if he had so *in- r^tico 
tended, he would not have used such expressions as these. He *- 
would not in one sentence include his fee simple estates which he had 
absolate power to dispose of, and the settled estates over which he had 
not the same kind of power, though he might appoint them, subject to 
B burthen, amongst a particular class. The words are not so applicable 
to the last kind of estate, as to the first. The cases cited establish 
principles which are not in controversy. They are instances of the 
application of those principles to particular circumstances. I apply 
them to the present case, and answer both questions in favour of the 
defendants. 

Pattbson, J. — I think the question really comes to this : Is there 
anything which will satisfy the words used in Bryan Cooke's will so as 
to make it unnecessary to resort to the Pulestone estate as the subject- 
matter of the devise 7 I think there is amply enough for that purpose 
stated in the. case. It is true that, applying the words << all my real 
estate over which I have any disposing power" to an estate of which he 
was seised in fee simple, the. latter words are of very little use ; but I 
think the testator did intend so to apply them. It would be quite a 
different thing if he had used the words << over which I have any dis- 
posing power under the will of Mrtf. Mary Pulestone." As to that will 
itself: the provisions are by no means clear. The term for 500 years 
18 to commence on the death of Bryan Cooke and Frances, in default 
of the exercise of the *power of appointment among the sons, yet the 
very first trust of the term is to raise 10,0002. during the lives of these 
persons, and that by. a term which is not to commence till after the 
death of the survivor. It is not easy to see how that was to be done. 
Be that however as it may : I have doub^ ^whether, after the 



trusts of this term had been partly executed l>y the appointment 



[*259 



in favour of the daughter, the testator had any longer a disposing power 
under Mary Pulestone*s will; but I am quite clear that he did not 
mean to exercise such a power if he had it. It is most improbable that 
he should intend to exercise a prior power after h&ving partially exer- 
cised a subsequent one. 

Erls, J.(a) — The plaintiff alleges that his father Bryan Cooke in- 
tended to exercise a power, which the father had under the will of 
Mary Pulestone, to appoint the Pulestone estates to the plaintiff in 
fee. The words which the father has used in his will are these, << All 
my real estate over which I have any disposing power I give, devise, 
and beqoeath to my eldest son," and his heirs. These words can in one 
sense be applied to the Pulestone estates : for Bryan Cooke was tenant 
for life of those estates under Mary Pulestone's will, so that they were, 

(o) Coleridge^ J^ wat aot in Court 



259 COOKE r. CUNLIFFB. T. T. 1851. 

in one sense, his estate, and he had power to appoint how they should 
go amoDgst a particdar class, viz., his sons, and had in one sense dis- 
posing power over them. But the words may also be explained m 
applicable to the Yorkshire estates, which were his own patrimonial 
inheritance, and over part of which he had disposing power, being 
owner in fee simple. I think that, giving to the words their ordinary 
sense, they show that he did not intend to exercise the power under the 
will. He might well call the Yorkshire estate <<my" estate, as con- 
tradistinguished from the Welsh estates which were his wife's ; and, 
for the purpose of distinguishing the fee simple from the part which 
was settled, describe it as that over which he had disposing power ; snch 
MGi)-] ^ think *i3 the more obvious meaning of those words, which are 
-' not so applicable to the Pulestone estate ovjer which he had 
power to appoint ampngst a class, as to his own fee simple estate of 
which he might dispose as he pleased. And this construction I think 
ia confirmed by the way in which he deals with the term of 500 years 
created by Mrs. Pulestone's will. That term was, under the provisions 
of the will, to come into effect in default of exercise of the power of 
appointment ; and the trusts were for securing portions to the younger 
children. Mr. Maliiu argues that the testator intended to exercise the 
power of appointment subject to the term ; but Mr. Peacock^ in his 
very able argument, points out that the term had been brought into 
operation in his lifetime by his joining in fixing the portion of one child, 
a daughter, but the trusts as to the amount of the portions of the 
younger sons were left indefinite ; and he argues that, if the testator had 
intended to exercise his power of appointment .subject to the terra, he 
would at all events have expressed his intention clearly, and said what 
portion each child was to take. It seems to me that, if he intended to 
exercise the power subject to the term, it is at least left ;n doubt what 
sum each of the younger sons was to take under the trusts of the term 
out of the estate. Construing the will the other way, it is clear, as 
each younger child takes 10002. under Mrs. Pulestone's will in default 
of an exercise of the power of appointment. 

The Court certified 

That the term of 500 years, limited by the will of the said M. 
Pulestone, is a subsisting term. And that the plaintiff, P. D. Cooke, 
is tenant for life only of the hereditaments comprised in the second 
question.(a) 

(a) Beportod by 0. Blftckboni, Bmi. 

A will containing no reference to a If one having only a power to dispose 

power, with which the testator is of lands, but no interest in them, make 

clothed, will operate as an appointment a disposition of them without reference 

under the power, if it can have no other to the power, they shall be considered 

operation : Bradish v, Oibbs, 8 Johns, as passing by virtue of the power ; b^ 

Oh. Rep. 523. cause otherwise the dispositioii would be 



17 ADQLPHUS A ELLIS. N. S. 260 

inopentive and void : Allison v. Kurtz, the land, without reference to his power, 

2 Watts, 188 * It is well settled that the land shall pass hy virtue of his 

when a man hath hoth a power and in- ownership : Hay ik Mayer, 8 WattSy 

terest, and undertakes to convey even 209. 
generally and not specially as owner of 



♦ARMISTEAD v. WILDE. June 5. [»261 

Cm« by a gue«t a^inst-an innkeeper for loss of money, in the inn. Plea : Kot Ouilty. It was 
prored that the guest showed the money ostentation tly in the presence of severni persons, and 
then openly pat it in an ill secured box, which he left in the traTollers' room ; and from thence 
it was stolen. The judge told the jury that gross negligence on the part of the guest would 
excuse the landlord, and lefc it to them to say " whether there was gross negligence in leaving 
the money in the travellers' room." The jury found fur the defendant. 

Held ; that if the direction had been that the landlord of an inn was'not answerable for the Ion 
of money left in a public room, it would have been wrong : but that» taking the direction 
with reference to the facts in evidence, it must have been understood by the jury to mean that, 
if the guest was guilty of gross negligence conducing to the loss, the innkeeper was not re- 
spftn^lble : and that the facta were evidence of such negligence conducing to the loss ; and the 
direction right 

Qimre, whether it is necessary to the innkeeper's defenee, in snob a case, that the 4iegligeoe« 
should be gro^u f 

Case against defendant as an innkeeper, for the loss of a parcel of 
money, brought by plaintiff's servant as a guest to defendant's inn, and 
there lost. 

Pleas 1. Not guilty. 2. A traverse of the defendant's being inn- 
keeper. Issues thereon. There were other issues which it is unneces- 
sary to notice. 

On the trial, before Piatt, B., at the Liverpool Spring Assizes, 1851, 
there appeared strong evidence that the defendant acted as mistress 
of an inn at Liverpool, though there was nothing absolutely inconsistent 
with her being there merely as housekeeper. The plaintiff's brother, 
who was his traveller, had for many years freqtiented the inn: he came 
there, whilst defendant was acting as above, bringing with him a box, 
which he left at night in the travellers' room, as he had often done 
before. In the morning he found that the box had been forced open, 
and a parcel containing several hundred pounds in bank notes, the pro- 
perty of the plaintiff, had been stolen ; and it was for this loss that 
the action was brought. It appeared on cross-examination that the 
box was very imperfectly secured, and that the traveller had rmooQ 
*boasted of the sum which he possessed, and had ostentatiously '- 
rolled up the notes and put them in the box in the travellers' room in< 
the presence of several persons. There was strong ground to suspect 
that one of those to whom he thus showed the notes had been the thief. 
The learned Judge, in summing up, told the jury that gross negligence 
on the part of the guest would exonerate the innkeeper from liability; 
he* commented on the facts, and directed the jury to find for the plain- 

VOL. XVII.— 23 



262 ARMISTEAD r. WILDE. T. T. 1851. 

tiff on the issue of Not guilty, unless they thought the traveller ^^had 
been gailty of gross negligence in leaving the money in the trsTellers' 
room." No complaint was made of the way in which the other issoes 
were left to the jury. The jury found on the first and second issues 
for the defendant, on the others for the plaintiff. 

WilkinSj Serjt., in last Easter Term, obtained a rule nisi for a new 
trial on the ground of misdirection, and also on the ground that the 
verdict on the second issue was against the evidence. 

KnowU^ and Orompton now showed cause. — The Judge's direction 
on the first issue was correct. The defendant's case at the trial was 
that, though the innkeeper was prim& facie liable for the loss of the 
parcel, the plaintiff could not recover against the innkeeper for a loss 
induced by the misconduct of the guest, the plaintiff's servant. There 
was evidence that the guest, in the presence of many persons, wantonly 
made it obvious to them all that this large sum of money was placed 
in an ill-secured box, left in a public room, in a populous town : and 
there was strong reason for believing that one particular person, to 
whom he thus showed the money, was the thief. Tlfe learned Judge 
4'9R^1 Mated, in ^summing up, that an innkeeper was not bound bj & 
-' loss occasioned by the guest's gross negligence ; he then com- 
mented on this evidence; and he finally told the jury that they should 
find for the plaintiff on the plea of Not guilty, «« unless they thought 
that the guest had been guilty of gross negligence in leaving the parcel 
in the travellers' room." It may be conceded that there would have 
been a misdirection if the learned Judge had told them that the guest 
by leaving the parcel in the travellers' room had taken it out of the 
landlord's custody : or. even if he had led them to believe that it was 
the guest's duty to take the parcel to his bedroom, or take any parti- 
cular care of it. But, when the direction is taken with the context, 
it means that leaving the parcel in the room under these circumstances 
was evidence from which they might infer gross negligence conducing 
to the loss : and, that an innkeeper is not liable for a loss so occasioned, 
was a right direction. 

(The argument as to the weight of evidence on the second issue is 
omitted.) 

John ffendersauy in support of the rule. — The learned Judge gave the 
jury a false criterion as to what was negligence ; he put the case to 
them as if the lea^ng of the box in the travellers' room was a breach 
of duty on the part of the guest. 

Lord Campbell, C. J. — I am of opinion that the rule should be dis- 
charged. If the learned Judge had intimated to the jury that it was 
the guest's duty to withdraw the property from the travellers' room and 
carry it with him to his bedroom, it would have been a misdirection : 



►264] 



but such was not his direction. The ^learned Judge reports that 
he finally left the question to the jury whether the guest was 



17 ADOLPHUS ft BLUS. N. S. 264 

■ ■ ■ - I 

Mgnilty of gross negligence in leaving the parcel in the trayellers' 
room:" that most be taken with reference to'the circamatances of the 
case. Can it be contended that it is impossible in point of law for a 
gaest under any cirenmstanees to be guilty of negligence in leaving a 
parcel of money in the travellers' room ? Suppose a guest were to count 
oat his money and leave it lying loose on the table of the public room ; 
. sorely that might be such gross negligence as to be the cause of the 
loBB. The facts here do not ^o so far as that ; but there was evidence 
that the plaintiff's servant in a public room, took out a large sum of 
money, counted it and showed it, and then left it there in a box capable 
of being opened without using a key. These facts might or might not 
amount to negligence : but they were evidence of it ; and it was a fair 
qaestion for the jury. We do not lay down that goods left in the tra- 
vellers' room in an inn are not in the care of the landlord, or that he is 
Bot responsible for their loss. Clearly he is prim& facie responsible. 
But there may be circumstances as to the nature and value of the pro- 
perty, the position of the room, or other things, which may make such 
conduct in the guest negligence conducing to the loss, and so rebut the 
landlord's prim& facie liability. There is no rule of law to make it so. 
It may in one case be gross negligence to leave property in the public 
room ; in another it may be gross negligence to remove it thence to the 
guest's bedroom : each case must depend on its own circumstances. In 
the present case there was evidence to go to the jury of gross negligence 
on the plea of Not guilty ; that issue was properly left to the jury : and 
the verdict '''on that issue must stand. That being so, the ques- rn^oaR 
tion whether the verdict on the second issue was or was not *- 
according to the evidence becomes immaterial. . 

Patteson, J. — I take the law to be clear that the innkeeper is prim& 
facie liable for the loss of goods in his house, though they are left in the 
commercial room. There may be a difference where the innkeeper has 
warned the guest not to do so, and he persists in leaving them there. 
But in the present case there was no discussion between the guest and 
the innkeeper as to the place in which the parcel was to be left. The 
guest left it in the public room ; and, if that had been all, the innkeeper 
would clearly have been liable for the loss. When the rule was granted, 
I had understood the Judge's direction to have been that the jury were 
to consider whether a prudent man would, of his own accord, have taken 
the parcel to the innkeeper and left it with him, or^ave taken it to his 
own room and locked it up, and that the jury were led to receive that 
as an exposition of what in the Judge's opinion woul.d have been negli- 
gence. But it now appears that there were other circumstances in this 
case : and I agree that, although the landlord is prim& facie liable, his 
liability may be rebutted by proof of such negligence on the part of the 
guest as to lead to the loss. Whether such negligence exists must 
always bo a question of fact. In the present case there were oircum- 



265 ARMISTEAD v. WILDE. T. T. 1851. 

stances, such as the guest ostentatiouslj rolling up the notes and letting 
people see that he put them in an ill secured box, which were evidence 
that might justify a finding that there was such gross negligence as to 
lead to the loss ; and the verdict on the first issue should not be dis- 
turbed. That being so, the second question is of no consequence. 
\ «n/«/.i *CoLERiDGE, J. — It Cannot be disputed that there msy be 
^ negligence on the part of the guest such as to relieve the land- 
lord from his liabilitj. The question is whether in the present case 
there was evidence of such negligence, and whether the proper guidanee 
was given to the jury. If the learned Judge had pht the case to the 
jury as if the fact of leaving the money in the travellers' room alone 
could have exonerated the landlord, he would have been wrong : bat 
liis direction must be taken with reference to the circumstances on 
which he had just commented. There was evidence that the goest 
ostentatiously showed the money, and allowed it to be seen that he left 
it in an insufficient box. There was a case which might properly go to 
the jury ; for there was evidence of facts which might make it negli- 
gence on the part of the guest to leave the money there. 

Erlb, J., concurred. 

Lord Campbell, C. J., added : The learned Judge reports that he 
left it to the jury to say whether there was ^^ gross** negligence on the 
part of the guest. I doubt whether that direction was not too favour- 
able to the plaintiff. I give no opinion on this point, which does not 
• yise : but it is not to be taken that we have decided that negligence 
on the part of the guest conducing to the loss will not exonerate the 
landlord unless it amount to crassa negligentia. 

Rule discharged.(a) 

(o) Reported by G. BlaelcbniHy Eaq. 

An innkeeper is responsible for the loss, notwithstanding it was usual to 
safe keeping of the goods of a traveller place loaded wagons in that place : 
who stops at the inn for the night, if Albin v. Presbj, 8 N. Hamp. 408. An 
the carriage containing the goeds is de- innkeeper is responsible for property of 
posited in a place designated by the a guest left in the inn, though not 
servant of the innkeeper, though it placed in the special keeping of the inn- 
should be an open space near the high- keeper : M' Donald v, Edgerton, 5 Bar- 
way : Piper v, Manny, 21 Wendell, hour Sup. Ct. 560. If the guest quits 
282. When, howevej, a loaded wagon the inn leaving his baggage behind him, 
was placed under an open shed near the the innkeeper is no longer responsible 
highway, without any request to the for its safe keeping, unless it is specially 
innkeeper to take the custody of it, and committed to his charge, and then onlj 
goods were stolen from it, it was decided as a common bailee : Wintermute v. 
that the innkeeper was not liable for the Clark, 5 Sandford, 242. 



17 ADOLPHUS k ELLIS. N. 8. 267 



*EATON V. The SWANSEA Waterworks Company. June 5. [*267 

CiM for diitarbing a wateroonrae whioh of right ought to flow into plaintiflT's close to irrigate it 
Plea : denial of the right. On the trial it appeared that the watercooree was not aneient, bat 
that the water bad flowed in ite present coarse for more than twenty years, past plaintiff's close. 
There was evidence that daring that period plaintiff, and those ander whom he claimed, had 
been constantly in the habit of drawing off the water to irrigate his close, and that the owners 
of the watercoarse resisted it. On one occasion, when plaintiff's serrant drew off the water, 
he wan sammoned before a justice for so doing ; plaintifi^s son by his direction attended and 
defended the serTant, and paid a fine of ]«. The conviction was under a local act, from whiph 
there was a power of appeal. Plaintiff did not appeal. 

The eooTiotion was tendered in evidence, and rejected. In summing up, the Judge explained 
that the enjoyment to defeat an adverse right must be for twenty years, without interruption 
acquiesced in for a year. One of the jury asked what would be the effect in law of a state of 
perpetual warfare between the parties t which question the judge did not answer. The jury 
found that ** the watercourse had been enjoyed as of right for twenty years, and without inter- 
rapfcion for a year," and were directed to find for plaintiff. 

Held that the evidence was improperly rejected, as the conviction, unappealed against, was, 
under the dreumstancee, evidence of an acknowledgment by the plaintiff, that the usage, to 
draw off the water for irrigation, was not as of right : 

Held also tfa«t interruptions, though not acquiesced in for a year, might show that the enjoyment 
never was of right, but contentioas throughout; though, if once the enjoyment as of right 
had begun, no interruption for less than a year could defeat it : and consequently that the man- 
ner in which the question was left» and the verdict found, was not satisfactory ; and a new trial 
was granted. 

Case. The first count stated that plaintiff was possessed of a close 
called the Home Field, and by reason thereof « oaght to have had and 
enjoyed, and still of right ought to have and enjoy, the benefit and 
advantage of the water of a certainf stream or watercourse, which had 
been used to run or flaw, and during all that time of right ought to 
have run and flowed, and, until the time of the diversion hereinafter 
complained of, did run and flow, and still of right ought to run and 
flow, into the said close*' for irrigating the same ; which the defendants 
diverted. 

Plea to 1st count : That plaintiff <« by reason of his possession of 
the said close ought not of right to have ♦had or enjoyed, nor r»of»o 
ought he still of right to have or enjoy, the benefit or advantage ^ 
of the water of the said stream or watercourse in that count mention- 
ed, nor had the said stream or watercourse been used to run," &c., 
««nor ought the same at the time when," &c., <«of rfgbt to have run,'* 
kc», «<or ought the same to run," ««unto or into the said close," modo 
et formft. On which issue was joined. • 

There were two other counts claiming the stream in respect of the 
Flat Field, and the Clover Field, on which the pleadings were similar. 

On the trial before Williams, J., at the last Glamorganshire Spring 
Assizes, it appeared that stat. 7 W. 4 & 1 Vict. c. lii.(a) incorporated 
the promoters of the Act by the name of <« The Swansea Waterworks 
Company," and authorized them, among other things, to make water- 
Co) Local and personal, puhlio. " For better supplying with water the town and borough of 
6wmiisea in the eounty of OUmorgan." 



*269] 



2G8 EATON t; SWANSEA WATERWORKS CO.* T. T. 1851. 

works, and for that purpose to purchase from the owners, by their con- 
sent, two mills, called Upper Bryn Mill, and Lower Bryn Mill, and the 
ponds and reservoirs of those mills, and the enjoyment of the water of 
the brooks and streams flowing into those ponds, and, under certain re- 
strictions not material to the present case, to divert those waters into 
the Company's waterworks. By sect. 82 it is enacted that, if any per- 
son shall (amongst other things specified) «< wilfully flush or draw off, or 
cause to be flushed or drawn off, the water from any parts of the said 
waterworks," « every person so offending shall forfeit and pay to the 
said Company for every such offence any sum not exceeding 10/." Bj 
sect. 93 such penalties are to be recovered before a justice of the 

*peace. And sect. 99 gives an appeal to the Quarter Sessions. 

The Company in 1839 purchased from the owners the two mills 
and mill-ponds, and the water belonging to them. Under this purchase 
they diverted into their waterworks a stream called Cwm Donkin. The 
present action was brought by order of Bruce, V. C, to try the right 
as between them and the plaintiff to that watercourse. * 

The stream called Cwm Donkin took its origin above the plaintiff's 
land ; it skirted the plaintiff's three closes, separated from them only 
by a wall, and then, below the plaintiff's land, flowed into what Ead 
been the Upper Bryn Mill-pond, and was now the Company's reservoir. 
The diversion complained of was a recent alteration in the course of 
the Cwm Donkin, above the plaintiff '« land, made for the purpose of 
forming a new reservoir for the Company. The plaintiff, at first, relied 
on his right to the use of the stream by immemorial prescription: the 
evidence was conflicting: but on th« whole it appeared that, about 
thirty years before 1st February, 1851, on which day the action was 
commenced, a new channel had been dug for the Cwm Donkin, and 
that from that time it had flowed in its present course, which was not 
therefore ancient. The plaintiff theA rested his case on twenty years' 
enjoyment under the Prescription Act (2 & 8 W. 4, c. 71). There was 
a great body of evidence on both sides. The plaintiff gave evidence 
from which the jury might fairly have inferred that the plaintiff, and 
those under whom he claimed, had been, for twenty years and more, in 
the habit from time to time of making a trench through a hole in the 
wall and so drawing off the water to irrigate the three fields in ques- 
**^701 ^^^^' '^^^^^ ^^^ ^'®^ evidence *from which it might be inferred 
^ that the occupants of the Upper Bryn Mill had (up to the time 
when the mill was conveyed to the defendants in 1839) been in the 
habit of stopping up this trench whenever it was made ; and that the 
defendants, since they acquired the mill, had pursued the same course. 
A witness for the defendants, named Luke, proved that on one occa- 
sion, in 1840, after the defendant^ had turned the stream into their 
works below the plaintiff's land, the defendants had closed the trench, 
and he as a servant of the plaintiff, by his order, opened it and drew off 



. 17 ADOLPHUS & ELLIS. N. S. 270 

the water ; that he had been summoned before a justice in consequence ; 
and that the plaintiff's son, by the plaintiff's direction, went with Luke 
before the justice, defended him, and ultimately paid a shilling ; and 
there was no appeal. A conviction of Luke before that justice for wil- 
fdly drawing off water from the Company's waterworks, under stat. 7 
W. 4 & 1 Vict. c. Hi. 8. 82 (above set out), was tendered in evidence by 
the defendants and rejected. In the course of the summing up, the 
learned Jpdge stated to the jury that one question was as to the enjoy- 
ment as of right for twenty years. He explained that to defeat a right 
an interruption must be acquiesced in for a year. A juryman asked. 
What would be the law, if there had been during 'more than twenty 
years a perpetual state of warfare between the parties ? The learned 
Judge said that, if they thought such the fact, tbey should say so, and 
then he would give his direction. In the end he put to the jury ques- 
tions in writing as to each count ; to which the jury gave written 
answers* 

The questions and answers on which the discussion in banc arose 
were as follows. 

1. Has the Cwm Donkin Brook flowed through a part *of the i^oti 
Home Field as an ancient natural watercourse enjoyed for the ^ 
purpose of irrigating and watering the same, and the more convenient 
occupation thereof? Answer. No. 

6. Have the occupiers of the Home Field enjoyed as of right for 
twenty years up to February 1st, 1851, a watercourse running through 
that field for the purpose of irrigating and watering the same and the 
more convenient occupation thereof? Answer. Yes; and without inter- 
ruption for a year. 

There were similar questions and answers as to the Flat Field and 
the Clover Field. The learned Judge directed a verdict for the plaintiff. 
JEvan9j in the ensuing term, obtained a rule nisi for a new trial, on 
the ground of misdirection, and of the improper rejection of evidence. 
He contended that the learned Judge's summing up had the effect of 
leading the jury to suppose that, if the water was taken by the plaintiff 
at intervals during twenty years, it was immaterial whether the enjoy- 
ment was of right, or secretly or forcibly, provided the intervals at 
which it was taken were less than a year. He said that what the jury- 
man called the «< perpetual warfare*' between the parties was a fact 
proper to be left to the jury as tending to show that the water was not 
taken as of right ; and that the conviction was material evidence for 
the same purpose. The rule was also obtained .upon affidavits. 

Qrove and Bovill now showed caube. — There was no misdirection. 
No interruption not acquiesced in for a year can operate as an interrup- 
tion ; Flight V. Thomas, 11 A. k E. 688 (E. C. L. R. vol. 39).(a) .^^^g 
*[Erle, J. — I was counsel for the successful party in that case ; ^ 

(o) Jadgment of Ezch. Ch. affirmed in Dom. Proc. 8 01. k Fin. 231. 



272 EATON v. SWANSEA WATERWORKS CO. T. T. 1851. 

and the jadgment was afSrmed in the House of Lords: yet I always 
thought it a strange decision. The effect of it was that, where there 
had been an enjoyqoent of light for nineteen years and a fraction, and 
then an interruption acquiesced in for the remaining fraction of a year, 
during which there was no enjoyment, the two together made up twenty 
years' enjoyment.] The decision proceeded upon the words of the 
statute, and is precisely in point. [Lord Campbell, 0. J. — The decision 
in Flight v. Thomas, 11 A. & E. 688 (E. C. L. R. vol. 89), 8. CI. t F. 
231, may establish conclusively that, when an easement has once been 
enjoyed as of right, such enjoyment must be taken, for the purposes of 
the Act, to continue though uninterrupted, unless the interruption be 
acquiesced in for a year. But I do not think any member of this Court 
is inclined to go beyond that decision.] 

Then, the conviction was not evidence, and was properly rejected. 
It was an adjudication of a justice on a collateral question, and could 
not be evidence against the plaintiff. The facts, as to what took place 
before the justice, were admitted ; and even if the conviction had been 
improperly rejected it could have made no difference. 

JEvans, WilleSy and Benson were not called upoa to support the rule. 

Lor4 Campbell, C. J. — There must be a new trial on the ground of 
the improper rejection of evidence. It seems to me that, although the 
conviction was not evidence per se, or admissible as an adjudication by 
mojo-] ^^® ^justice, it was not only admissible, but very material, when 
-* connected with the facts which preceded and followed the con- 
viction, which it explains so as to make them very important evidence 
on the question whether there was an enjoyment as of right. 

It appears that Luke, the plaintiff's servant, did an act by his com- 
mand; he was summoned before a justice; the plaintiff's son went with 
him before the justice and, as the plaintiff's agent, paid the fine im* 
posed ; and there was no appeal. The conviction, if admitted, would 
have shown that the act for which Luke was fined was drawing off the 
water. If he had by the plaintiff's order drawn off the water, and the 
plaintiff had a right to draw it off, he would have done no more than 
was lawful, and the conviction would have been wrong. The plaintiff, 
who knew this, and knew he might appeal, did not do so. That acqui- 
escence of the plaintiff in the conviction must be evidence, as an acknow- 
ledgment that he did not enjoy as of right. Its weight may be great 
or small ; but it should not have been excluded : and certainly it is not 
so small as to enable us to say that it could not affect the verdict. | 

I have the less regret in sending down the cause for a new trial on 
this ground, because I am not convinced that the verdict was satis- 
factorily obtained. The jury answer the question put by the learned 
Judge in these terms: "Yes; and without interruption for a year." 
The answer is a sort of negative pregnant ; and, when coupled with what 
passed before, it leads me to suspect that the jury may have thought 



17 ADOLPHUS k ELLIS. N. S. 278 

that there was a perpetual warfare, and that, though the easement was 



elaimed as of right, the enjoyment was not as of right *btit con- 
tentious. Now, though it may be that an interruption must be 



[*274 



acqaiesced in for a full year before it breaks the period, where the 
sabject-matter has previously to the interruption been enjoyed as of 
right, interruptions acquiesced in for less than a year may be of great 
weight as evidence on the question whether there ever was a commence* 
ment of an enjoyment of right. Such interruptions are explanatory of 
vhat the user really was. I think it would be a monstrous state of law 
if this were not so. 

Patteson, J. — This conviction was of the plaintiif's servant for an 
act done by the plaintiff's command ; he knew of the summons, and sent 
his son to attend ; and the son paid the fine, and did not appeal. It is 
all one as if the plaintiff himself had been convicted, and paid the fine ; 
and it was clearly evidence, for the reasons my Lord has pointed out. 

As to, the more important question. This is a claim to an easement 
nnder stat. 2 & 8 W, 4, c. 71, s. 2: Flight v. Thomas, 11 A. &; E. 688 
(E. C. L. R. vol. 39), 8 CI. & F. 231,(a) was under sect. 8. The words of 
sect. 2, << enjoyed by any person claiming right thereto without interrup- 
tion for the full period of twenty years," must be understood to have the 
same nlfeaning as the words used in sect. 5, where it is enacted that in 
pleading it shall be sufficient to allege « the enjoyment thereof as of 
right." In the present case the Judge does not give the jury any 
specific guidance as to what enjoyment « as of right" is : and their 
answer to the question actually put is a little ambiguous. The question 
ought to *have been shaped more distinctly ; for there were many r^o^c 
pieces of eridence in this case (in addition to the conviction which ^ 
was rejected) which were proper for the consideration of the jury on 
the question w:hether the enjoyment was of right. 

CoLBRiDGB, J. — I am of the same opinion. I think that on a question 
of this kind it is most important to show what was the nature of the 
user, and of the interruptions, as bearing on the question whether the 
enjoyment was as of right. For, though no interruption for less than 
a year breaks the period when once the enjoyment as of right has begun, 
yet interruptions acquiesced in for less than a year may show that the 
enjoyment never was of right. 

Erlb, J. — The plaintiff claims a right to water from twenty years' 
enjoyment, under stat. 2 & 8 W. 4, c. 71. The defendant had, from 
time to time, prevented him from exercising the easement claimed. The 
question was left to the jury, Had the plaintiff «< enjoyed as of right ?" 
These words << of right" occur in sect. 5 of stat. 2 & 8 W. 4, c. 71 ; and 
there has been much difficulty as to their construction : but it seems 
clear that, if the enjoyment is clandestine, contentious, or by sufferance, 

(a) Sm per Maale, J., 11 A. A E. p. 695. See also The Mayor, Ac, of London, v. The Maeter. 
Wardent, Ac, of the Pewterers' Companj, 2 Mo. A Rob. 409. 
VOL. XVII.— 24 ' Q 2 



275 EATON v, SWANSEA WATERWORKS CO. T. T. 1851. 

it is not of right. Enjoyment as of right must be ^ nee clam, nee ▼!, 
nee precarid."(a) It seems to me that the piece of evidence rejected 
was most material on the question whether the nser in the present 
*27fil *^*®® ^^ ^^ enjoyment of this nature. The plaintiff drew off 
^ the water ; it was an act of user of the very easement now claimed; 
then what does the defendant ? He attacks and conricts and fines the 
plaintiff, who acquiesces and pays the fine : I say the plaintiff, for Luke 
and the plaintiff's son are identified with him. I think the conviction, 
which was the proper evidence of this, was most material on the question 
whether the user was « of rights For the rest I need only say I agree 
entirely with my Lord Chief Justice. Rule ab8olute.(6) 

(a) Saod enim et in aerritntibua hoc idem seqaimnr, xk\, ubi serriias non invenitor imposita, 
(fill din ufU8 est servitate neqae tI, neqae preearid neqae clam, habniMe loog& oonsuetadine, Tel 
Jure impositam serviiadinom videatur. * * • * eritque lata quasi seiritoa. Dig. Kb. 39, 
tit 3, De 4tqua, L 1, eec. 23. Bee also Oale on Easements (2d edition), p. 123. 

(6) Reported by C. Blackbam, Esq. 



Doe on the demise of The Sari of ASHBHRNHAM v.' MICHAEL 

June 6. • • 

In ejectment, the question being whether the premises were parcel or np parcel of a manor, the 
lessor of the plaintiff produced from his muniments books purporting to be the books of J. V., 
stoward to plaintiff 's ancestor the then earl of A, In one of those books J. V. was debited, 
in 1782, with the receipt of rent for the premises in question. The balance of the account for 
the half year was struck but was not signed : under it was written in a different hand, ** Tbe 
above balance is accounted for in a general statement at the end of the year's account ending 
Michaelmas, 1793, entered in a subsequent book." This entry was dated February 18, 179», 
and was signed by the then Barl and by ** J. V. Jun.^ The balance was carried down in the 
account, and balances were struck in each half year: none were signed by J. V. ; but under 
each was a similar entry signed by the Earl and J. V. Jun., until the end of the last book, 
•'Where was entered : '' Balance due to J. V. 76/. 18th February, 1795. The above accoant 
was this day settled ; and tbe balance, 76/., due thereon to J. V. Sen., was paid by the Earl of 
A. to J. V. Jun., and tbe vouchers delivered up to his Iiordship." This was signed by tbe £sil 
and J. V. Jun. No evidence was given of the character or position of J. V. Jua., or that he 
was dead, or that he had ever existed. ' 

Held : That, inasmuch as the entry was produced from the proper custody, and purported to be 
fifty-five years old, it was not necessary to prove that J. V. Jun. was dead. And that, inai- 
mueh as J. V. Jun. charged himself with the receipt of the last balance, and the entry of the 
payment of rent was part of the balance in that year which was carried down so aa lo fona 
part of the last balance, the entry was admissible evidence of the payment of rent. 

Ejectment for a cottage and premises. 
^^--, On the trial, before Williams, J., at the last Brecknock ^Spring 
-* Assizes, it appeared that the premises were claimed as parcel of 
a manor of which the lessor of the plaintiff was unquestionably owner. 
Two books were produced from the muniments of the Earl of Ashbum- 
ham. These books purported to be the books of John Vernon, a steward 
to the then Earl. The account was carried on in these two books till 
the end of the year 1793. Balances were struck each half year, which 
were always carried on into the next half year's account. In the account 



17 ADOLPHUS & ELLIS. N. S. 277 

for the kftlf year ending in June, 1782, in the £r8t book, credit waa 
given to the Earl of Aahbnmham for^rent received in respect of the 
pretnise» in question ; and the balance was struck and entered Us follows : 
"26 July, 1782. Balance due John Vernon 76t 7«. Sd." Neither 
this nor aijy oth^ entry was signed by the steward ; but underneath 
it was written, in a different hand, «« The above balance is accounted 
for in a general statement at the end of the year's account ending 
Michaelmas, 1798, entered in a subsequent book." 

Feb. 18, 1796. * Ashburnham. 

• John Vernon, Jun." 

A similar entry was made under each consecutive half-yearly balance ; 
and at the conclusion of the second book the final balance was struck, 
and was entered thus : 

«i Balance due to John Vernon 762. 19«. 7(2. 

(( 18th Feb. 1795. The above account was this day settled ; and the 
balance, seventy-six pounds and nineteen shillings and seven pence, due 
thereon to John Vernon, Senior, was paid by the Earl of Ashburnham 
to the undersigned John Vernon, Junior, and the vouchers delivered up 
to his Lordship. Ashburnham. 

John Vernon, Junior." 

^These books were tendered in evidence by the lessor of the ^4^970 
plaintifil It was objected, that they were not signed by John *- 
Vernon the steward, and that no evidence was given of the character 
of John Vernon, Junior, who it was said might never have existed, or 
might still be alive. 

The learned Judge received the evidence ; and the plaintiff had the 
verdict. 

In last Easter Term, 21 Allen obtained a rule nisi for a nen trial on 
the ground of the improper reception of this evidence. 

Evans and Gfrove now showed cause. — The signature of John Vernon, 
Junior, bears date fifty-five years before -the trial ; and the book in which 
it was found was produced from the proper custody. No further proof 
was necessary ; Wynne v. Tyrwhitt, 4 B. & Aid. 376 (E. C. L. R. vol. 
6). Then John Vernon, Junior, charges himself with the receipt of 
76/. 19«. 7<2. in 1795 ; and, from the manner in which the entry is made, 
proof that the balance in 1795 was correct is proof that the balance in 
1782 which is brought down in the account is also correct. The case is 
not therefore like De Rutzen v. Farr, 4 A. & E. 58 (E. G. L. R. vol. 81), 
where the person signing neither charged himself, nor appeared to have 
authority to charge his principal. 

T. AUen, contrjl. — John Vernon, Junior, may have been alive. The 
lapse of more than thirty years dispenses with the proof of his hand- 
writing ; but it does not show that he is dead, unless some search be 
made for him. 



27S DOE d. LORD ASHBURNHAM v. MICHAEL. T. T. 1861. 

Lord Campbell, C. J. — I am of opinion that this rule should be dis- 
charged, as the evidence was properly received. 

*The first objection was that John Vernon, Junior, was not 



*279] 



shown to be dead. Bat I think, seeing that the entry bears date 



more than fifty years before the trial, proof of the death of the person 
signing it was unnecessary. Under such circumstances, in the absence 
of evidence to the contrary, it is to be presumed that he is dead. After 
the lapse of thirty years it is unnecessary to call an attesting, witness. 
And, if the lapse of fifty-five years is not suQicient to afibrd a presump- 
tion of the death of a person signing an entry, it is diflScult to say what 
period would suflSce. 

Then comes the question, whether this entry signed by John Vernon, 
Junior, is evidence. As it is now explained, I think it is. I do not 
find fault with the decision in De Rutzen v. Farr. As soon as we see 
that Protheroe, the clerk in that case, neither charged himself, nor was 
shown to have authority to make his principal liable, it appears that the 
decision was right. But here John Vernon, Junior, does charge him- 
self with the receipt of money for which he is personally accountable. 
Besides, if it were necessary to resort to that, I think we cannot reject 
the part of the entry which is signed by the late Earl of Ashburnham, 
and in which John Vernon, Junior, is accredited in accouftting with him. 

Pattbson, J. — This is a peculiar case, and must not be taken as an 
authority that any person signing an ancient document for another 
thereby makes it evidence. There were no contemporaneous signatures 
to the entries in 1782, charging the steward John Vernon, Senior, with 
*9ft01 *^® receipt of these rents ; but they were brought down ♦into a 
-' balance ; and that balance was carried on in the account till, in 
1795, there was a general settlement, when the final balance was found 
in favour of the steward. Then John Vernon, Junior, signs an entry 
as receiving that balance for John Vernon, Senior, and Lord Ashburn- 
ham signs it also, treating John Vernon, Junior, as a person accredited 
by and acting for the steward. ■ This is a peculiar state of facts, very 
different from the case of De Rutzen v. Farr. 

John Vernon, Junior, does not profess to charge himself with the 
receipt of the rents before 1782 : but he does charge himself with the 
receipt of the balance in 1795 ; and that included these items. 

CoLBRiDGB, J. — I agree that under the special circumstances the 
books were properly received in evidence. These are not entries made 
by a mere stranger, and found by accident. They are regular books of 
considerable antiquity, and produced from the proper custody. In them 
appears the entry of a transaction, not merely of an accountant striking 
a balance, but of the lord and the accountant going back, and the 
accountant receiving the balance, so that the lord in effect accredits him 
as the party accounting. 



17 ADOLPHUS k ELLIS. N. S. 280 

Eblk, J.) had left the Coart before the conclusion of the argument. 

Rule di8charged.(a) 

(a) Keported by C. Blaokbarn, Esq. 



' *SIMS and Another v. MARRTAT. June. 6. [*281 

Defendant, executor of a deoeMed aathdr, M., wrote to pUintiff, a pablisher, referring to a pre- 
Tious offer from plaintiff to defendant to give 50^ for the copyright of one of M.'s works called 
Y., which defendant said be had accepted. Defendant then added : " I possess but few of the 
^Pjnght* of the earlier portion of M.'s works :" <' I will let you know in a few days those of 
the works that belong to me that I feel disposed to offer" you : " in the mean time I shall be 
gUd to know if you received my last letter accepting your offer for V., and, if not, whether 
yon still hold the same proposal." Plaintiff paid defendant 60{., and bad trom him a receipt in 
tfae$e terms : " Received from St" (the pinintiff ) " bOl. for permission to publish M.'s work, V., 
•0 long as the copyright may endure. The right to be exclusively" S.'s " own for ten years 
from this date." M. in his lifetime had agreed with B., another publisher, to sell him the 
copyright of V. No transfer had been executed ; and the agreement between M. and B., which 
was in writing, was unattested. This was unknown to defendant and to plaintiff. B. opposed 
the publishing of the work by plaintiff, who then brought an action against defendant on a 
warranty of title in the copyright : 

Held, that there was in this case an express warranty of title oontained in the letter and receipt. 
Qnctre, whether on the sale of snch a commodity as a oopyright the law would imply a war- 
ranty of title ? 

Held, also, that B. bad an equitable title to the oopyright 

The Court takes judicial notice of the law of England as administered in the Courts of Equity. 

Assumpsit. The declaration recited that the plaintiiTs were the pro- 
prietors of a literary periodical, called the Parlour Library, and werje 
desirous of publishing therein a work whereof one Frederick Marryat, 
then deceased, was the author ; and that the defendant was the son and 
executor of the said F. Marryat. It then stated that, in consideration 
that plaintiffs would pay defendant 50Z., for license and permission to 
publish the said work of F. M. in the said literary periodical, defend- 
ant promised plaintiffs that he, defendant, then had sufficient right, title, 
and authority, at law and in equity, to sell and grant such license and 
permission. Averment that plaintiffs paid the said sum of 502. Breach ; 
that defendant at the time of the said contract had not such right, &c., 
as aforesaid, but that, on the contrary thereof, at the time of the mak- 
ing of the said contract, one Richard Bentley was equitably the pro- 
prietor of the Copyright of the said book or work, and had the sole 
right, title, and authority to grant such ^license and permission r^noo 
to publish the said book or work. Allegation of special damage. ^ 

Pleas : 1. Non assumpsit. 2. That defendant had such sufficient right, 
title, and authority, in accordance with his said contract, as alleged in 
the declaration. 3. That Bentley was not equitably the proprietor of 
the said copyright, nor had he the sole right, &c., to grant such license 
or permission as alleged in the declaration. Issues thereon. 

On the trial, before Lord Campbell, C. J., at the Middlesex sittings 



282 SIMS V, MARRYAT. T. T. 1851. 

after last Michaelmas Terra, a verdict was found by consent for the 
plaintiffs, for 4252. damages and 40«. costs, subject to the opinion of 
this Court on the following case. 

The plaintiffs in this cause are booksellers and publishers at Belfast; 
the defendant is the son, heir-at-law, and sole executor of the late 
Captain Frederick Marryat, who was the author, among other hooka 
and works, of that mentioned in the declaration, called «' The Adven- 
tures of Monsieur Violet," which was first published in or about 1849. 
Captain Marryat died on 9th August, 1848, having on 14th March, 
1848, duly made and published his will, whereby he gave and derised 
all his real estates and personal estate whatsoever and wheresoever 
(with certain exceptions not including the copyright of any of his bool^ 
or works) to the defendant, his heirs, executors, administratora and 
i|8signs, absolutely and for ever. The defendant proved the will on 
25th October, 1848. 

The plaintiffs are the proprietors of a periodical work called " The 
Parlour Library," which is published in monthly volumes, each nsually 
containing some popular work of fiction. In February, 1849, the plain- 
*^R^1 ^'^^ ^^^^ *desirous to publish in The Parlour Library "The 
^ Adventures of Monsieur Violet," and communicated the fact to 
the defendant by letter ; but the plaintiffs are unable to adduce legal 
evidence of the terms thereof. On 1st March, 1849, the defendant in 
reply wrote and sent to the plaintiffs the following letter. " Gentle- 
men — I shall be very happy to treat with you respecting the copyright 
of * Monsieur Violet.' — ^Yours, very truly, Frank Marryat." On 23d 
August, in the same year, the defendant again wrote and sent to the 
plaintiffs the following letter. <« Gentlemen — You formerly made me 
an offer of fifty guineas for the exclusive right of publishing in yonr 
Parlour Library for ten years Captain Marryat's work < Monsieur Vio- 
let,' which offer I accepted, and wrote to you to that effect : I possesa 
but few of the copyrights of the earlier portion of Captain Marryat*9 
works ; and they are many of them already published in a cheap edi- 
tion : I will let you know in a few days those of the works that belong 
to me that I feel disposed to offer for your Parlour Libarary ; in the 
mean time I shall be glad to know if you received my last letter ac- 
cepting your offer for " Monsieur Violet," and, if not, whether you still 
hold the same proposal. I remain," &c. "Frank Marryat." ''I 
perceive, on reference to your letter, that fifty pounds was the snin 
offered." The plaintiffs thereupon paid to the defendant the sum of 
50L ; and the defendant gave them the following receipt : «< Langham, 
August 25th, 1849. — Received from Messrs. Sims & M'Intyre fifty 
pounds sterling for permission to publish Captain Marryat's work, ^ The 
Travels of Monsieur Violet,' so long as the copyright may endure : that 
right to be exclusively their own for ten years from this date. Frank 



17 ADOLPHUS & ELLIS. N. S. 288 

S. Marrjat." ^Immediately after tke payment of the 502., the r^coo^ 
plaintiffs took proceedings to prepare the said wArk for the press ^ 
00 as to form the November volume of The Parlour Library. The case 
did not state the particular expenses incurred by them, as it was agreed 
that, if the Court should be of opinion that the plaintiffs were entitled 
to recover, the verdict for 4252. was to stand* 

Id the month of September, after the plaintiib had made very con- 
siderable progress in their said proceedings, and had advertised the 
AdFentures of Monsieur Violet as being one of the intended volumes 
of The Parlour Library, they received a notice from Mr. Bentley for- 
bidding them to proceed with the publication, and claiming to be en- 
titled to the copyright of the work. A correspondence ensued between 
tbe parties, which resulted in Mr. Bentley persisting in his claim ; and 
the plaintiffs abandoned their intention of publishing the book. It was 
made to appear to them, as the fact was, that, prior to the 29th May, 
1846, a negotiation took place between the late Captain Marryat and 
the said Richard Bentley touching the subject-matter of the instru- 
ment hereinafter next mentioned, which resulted in the following instru- 
ment being signed by the late Captain Marryat, and delivered by him 
to the said B. Bentley. 

<< Memorandum of agreement, made the 29th day of May, 1846, be- 
tween Captain Marryat, B. N., C. B., and of Langham, Norfolk, on the 
one part, and Richard Bentley, of New Burlington Street, publisher, 
on the other part. The said Captain Marryat hereby agrees to assign 
over all the remaining copyright of and in the eight under-mentioned 
works written by the said Captain Marryat (the said copyright being at 
this ^present time his exclusive property to use as he may think r^ooe 
proper) to the said R. Bentley : The eight works thus to be as- *- 
signed are as follows : — 1. The Phantom Ship. 2. The Poacher. 8. 
The Dog Fiend. 4. Percival Keane. 5. 011a Podrida. 6. Diary in 
America. 7. Diary in America, second part. 8. Monsieur Violet's 
Adventures. Each and all of which works, the previous editions being 
sold off, are available to be used in any manner the said R. Bentley 
may choose, with the exception of The Phantom Ship, which will bQ 
available at the expiration of seven years from first publication. And 
the said R. Bentley agrees to purchase all the remaining copyright and 
author's interest in the aforesaid works at and for the sum of SOOZ. ; 
to be paid to the said Captain Marryat in his the said R. Bentley's 
promissory notes at six and nine months, for 150Z. respectively, on the 
execution of the present memorandum of agreement. A deed of as 
Bignment of the said copyright by the said Captain Marryat to the 
said R. Bentley (such assignment to be at the expense of the said R. 
Bentley) to be executed within the ensuing month of June." Signed, 
"Frederick Marryat." 
The said R. Bentley accepted the said instrument from the said Cap- 



285 SIMS V, MARRY AT. T. T. 1851. 

tain M., and assented thereto, and gave to the said Captain M. the said 
promissory notes, whicd were paid at maturity. Although the said in- 
strument was stamped as an agreement at the time of the trial of this 
action, yet it was not stamped when it was signed by the said Captain 
M., nor was his signature attested. The said instrument was not sealed 
by Captain M. Counsel of eminence at the equity bar were prepared 
to prove at the trial of this cause that, in their opinion, although the 
*9ftRl l^^'Q^^Q^io'^®^^ agreement was not ""attested so as to vest the 
^ legal right to the copyright in the said R. Bentley, yet a Court 
of equity would have decreed Captain M. in his lifetime, or his repre- 
sentative after his death, specifically to perform that agreement, and to 
concur in an entry at Stationers' Hall so as to have given the said B. 
Bentley a clear legal title to the copyrights of the works mentioned in 
the agreement. 

The work mentioned in the above instrument called « Monsieur Vio- 
let's Adventures" is the same work as <^ The Adventures of Monsieur 
Violet" mentioned in the declaration. The plaintiffs do not impute to 
the defendant that he was aware of the existence of the above instru- 
ment at the time of the receipt of the said 50/. from the plaintiffs. No 
entry of the said instrument, nor any reference to the same, has at any 
time been entered in the Book of Registry mentioned and referred to 
in sects. 11 and 13 of stat. 5 & 6 Vict. c. 45; nor has any entry been 
made in the said Book of Registry of any assignment to the said R. 
Bentley, or any other person, of the copyright of the said work called 
<<The Adventures of Monsieur Violet;" nor is such a copyright in any 
way referred to in such Book of Registry ; nor are the plaintiffs' names 
in any way mentioned or referred to in the said book in connexion with 
the said copyright, as having license or permission to publish the said 
work, or otherwise. The defendant denies that he gave any such war- 
ranty as that alleged in the declaration. The plaintiffs, however, con- 
tend that the foregoing facts sufficiently prove such warranty. The 
defendant also contends that he has also a good defence to this a tion 
on the second and third pleas. 

The Court was to have power to draw any inference of fact which a 
*9ft7l J"^7 might have drawn; also to order *any amendment of the 
^ pleadings which the Lord Chief Justice might have ordered at 
Nisi Prius. A copy of the pleadings accompanied, and was to be 
deemed part of, the case. If the Court should be of opinion that the 
plaintiffs were entitled to recover, the verdict was to stand ; if the 
. Court should be of a contrary opinion, a nonsuit to be entered. ^ 

The case was argued in this term ; June 3d(a) and 6th.(i) 

Stugh Hilly for the plaintiffs. — The questions that arise are distinct; 

(a) Before Lord Campbell, C. J.» Patteton and Brl«, Js. ; Coleridge, J., was »t GnildhalL 
{b) Bofoire Lord Campbelli C. J., Patteson, Coleridge, and Erie, Jt. 



17 ADOLPHUS & ELLIS. N. 8. 287 

first, whether the defendant gave a warranty of title to the copyright ; 
secondly, whether Bentley had the equitable interest in the copyright. 
As to the first question : a warranty of title is implied by law on 
' sach a sale as this : but, further, there was in the present case an 
express warranty. There are no cases as to the extent to which the 
law implies a warranty of title on a sale either of a copyright or of a 
license to print a book : the case must be decided by its analogy to 
others. It is clear that on a sale of real estate the vendor contracts 
to make a good title. It is true that, when the conveyance is actually 
executed, there is no covenant beyond what may be expressed in the 
deed ; for expressum facit cessare taciturn ; and so it may be that, if, 
in the present case, a transfer of the copyright under seal had been 
executed, the plaintiffs must have relied on the covenants in that trans- 
fer: bat the contract here remained executory. So in sales of per- 
sonal property, where the property passes, there is, according to p^qoq 
*the reasoning of the Court of Exchequer in Morley v. Atten- *■ 
borough, 3 Exch. 500, f (a) warranty of title implied by the mere sale ; 
bat in the judgment in that case (6) a distinction is made where the 
contract is executory. The principle of that distinction prevails in 
sales of shares in public companies ; Hibblewhite v. M'Morine, 6 M. & 
W. 200,t Shaw v. Rowley, 16 M. A; W. SlO.f [Patteson, J.— Those 
are not bargains for the sale of specific things ; the vendor is to supply 
shares ; and it is quite immaterial to the purchaser which specific shares 
are supplied.] The contract here is not executory in the sense that 
the thing to be transferred was unascertained ; but it is executory in 
so far that a subsequent conveyance was necessary to pass the copy- 
right. But, in the present case, the bargain is contained in written 
documents ; asd on the fair , construction of these the defendant 
expressly warrants the title. 

The second question is 'one of equity. [Lord Campbbll, C. J. — It 
was a mistake to propose adducing evidence as to the doctrines of 
equity. Equity is not a foreign law to be proved by evidence, but 
part of the law of this realm of which the Judges take judicial notice, 
and which is to be established by argument, and by citing authorities. 
It is different as to the practice in equity.] A Court of equity would, 
in this case, have decreed a specific performance in favour of Bentley, 
on the ground that the contract was for the sale of the particular copy- 
n'ght, for the breach of which contract the remedy at law was inade- 
quate; Adderly v. Dixon, 1 Sim. k Stu. 607. And, had the plaintiffs 
proceeded to publish the work, Bentley *roight have obtained an 



injunction to prevent them ; Sweet v. Cater, 11 Sim. 572. 



[*289 



CAanneUj Serjt., contri. — This is not an action for money had and 
received to recover the price paid for the right supposed to be sold to 

(a) See Cfaapmaa «. SpeUer, U Q. B. 021 (B. C. U R. vol. 6S). ' 

(6) 3 Exch. 60».t 

VOL. XVII. — 25 R 



SIMS V. MARRYAT. T. T. 1851. 



the plaintiffs, but an action for large damages consequential on the 
breach of an alleged warranty of title. The warranty declared on is 
that the defendant had a good title both at law and in equity : is sach 
a warranty implied or proved ? It is not quite clear whether the coo- 
tract was to sell the copyright, or merely to give a license to print. 
Either way, it is for the sale of a specific thing; and, according to 
Morley v. Attenborough, 3 Exch. 500,t no warranty of title is b; the 
law of England implied merely on the sale of a specific thing. The 
distinctions made in the judgment of the Court, of Exchequer in that 
case do not affect the defendant. Where a contract is to sspply things 
of a particular description which the vendor is to select, there is good 
reason why the vendor should be held to warrant the title ; and the 
Court of Exchequer refer to contracts executory in that sense. Again, 
where a chattel is exhibited for sale under such circumstances as amoont 
to an assertion that the vendor will give a title, as in a retail shop, a 
warranty may be inferred. But in the present case the defendant was 
an executor ; as such he had those incorporeal rights which his testator 
had not disposed of; and he sold the copyright as a copyright of his 
testator ; his position was exactly analogous to that of the pawnbroker 
who sold the harp as an unredeemed pledge ; Morley v. Attenborough. 
^nckfft Had a specific *performance been decreed, the Court of Equity 
^ would not have ordered the defendant to covenant for title abso- 
lutely, but to covenant as an executor usually does, against his own acts 
and omissions only. To that extent he may well be held to warrant 
the title : but neither by express words nor by implication does he war- 
rant further ; Peto v. Blades, 5 Taunt. 657 (E. C. L. R. vol. 1). 

Then as to Bentley^s right. Had he gone into Equity, the defendant, 
who had the legal title, must have been made a party; and he might 
have urged that Bentley in not giving him notice of the assignment 
had been guilty of laches. That would not have barred Bentley from 
equitable relief; but it would have been made a condition that he should 
do equity by indemnifying the defendant against the consequences of 
bis laches. At all events the last issue should be found for the defend- 
ant, as it is clear that Bentley had not the legal title, and consequently 
had not «« the sole right, title, and authority to grant such license and 
permission." [Lord Campbbll, C. J. — The whole plea must be taken 
together ; and then it is clear that the averment means sole right as 
equitable assignee.] 

Hitgh Hill was not called upon to reply. 

Lord Campbell, C. J. — ^I am clearly of opinion that the plaintiffii 
are entitled to the judgment of the Court. I do not think it necessary 
to inquire what the law would be in the absence of an express warranty. 
.On that point the law is not in a satisfactory state. The decision in 
Morley v. Attenborough, 3 Exch. 500,t was that a ^pawnbroker, 



♦291] 



selling an unredeemed pledge as such, did not warrant the title 



17 AD0LPHU8 & ELLIS. N. 8. 291 

of the pawnor. Of that decision I approve : but a great many qnes- 
tioDB, beyond the mere decision, arise on the very able judgment of the 
learned Baron in that case, which I fear must remain open to contro- 
Tersy. It may be that the learned Baron is correct in saying that, on 
t sale of personal property, the maxim of caveat emptor does by the 
law of England apply : but if so there are many exceptions stated in 
the judgment which well nigh eat up the rule. Executory contracts are 
said to be excepted ; so are sales in retail shops, or where there is 
a Qsage of trade : so that there may be difficulty in finding cases to 
which the rule would practically apply. But in the present case we 
ha?e the documents before us to which we must ]ook for the contract. 
We are to look, not at the preliminary negotiations, but at the final 
contract, which is proved by the correspondence, and in the receipt. 
And, doing so, I cannot have any doubt that the defendant, in ignorance 
of what his father had done, and without the smallest blame attaching 
to him, and really believing that the title to this copyright was in him, 
did warrant that it was in him, and did warrant this to the plaintiffs as 
purchasers of the copyright from him. The first letter set out in the 
ease offers to treat with the plaintifis respecting << the copyright of 
* Monsieur Violet.' " The copyright of a work is the exclusive right to 
oialtiply copies of a work, not merely a right to do so in common with 
others. The answer to that letter is not given ; but there is a second 
letter in which the defendant writes : «< You formerly made me an offer 
of fifty guineas for the exclusive right of publishing in ^our Parlour 
Library for ten years Captain Marryatt's work < Monsieur Violet,' 
*which offer I accepted, and wrote to you to that effect." Here r^iooo 
is an acknowledgment of a contract whereby the defendant sold ^ 
"the exclusive right of publishing." How could he do so unless he 
had it ? Is not this an affirmation that the copyright of « Monsieur 
Violet" did belong to him, and to him only, and that he had sold that right ? 
If we were confined to the words of the receipt alone, I think they would 
of themselves amount to an express promise that the plaintiffs were to 
have thu exclusive right so long as the oopyright should endure ; and is 
not that promise broken if the defendant had not the exclusive right to 
give them ? It appears therefore to me that in this case there was an 
express warranty, and that we are relieved from considering the more 
general question. 

As to the other points. I have no doubt that the Judges of a common 
law Court take judicial notice, not only of the doctrines of Equity, but 
of those of every branch of English law, when they incidentally oome 
hefore them. When a question of ecclesiastical law arose, it used to 
be the practice to move for two Doctors. Those learned persons when 
they came were treated with great respect ; but they came as advocates 
to argue the law, not as witnesses to state it. It has sometimes been 
said that we know nothing of Parliamentary law: but, if a question of 



SIMS V. MARRYAT. T. T. 1851. 



Parliamentary law does come before us incidentally in a matter over 
which we have jarisdiction, we must decide it, and must inform oursehes 
as we best can. So in a question of Equity. If we do not know the 
doctrine of Equity, we are supposed to have the means of learning it. 
In the present case I have no doubt that Bentley had the equitable 
interest in the copyright, and that, if the plaintiffs had not obeyed 
*9Q^l *^^ notice, he would have obtained an injunction; Sweet v. 
^ "^J Cater, 11 Sim. 572. 

Patteson, J. — ^I agree with my Lord in thinking that the general 
doctrine as to implied warranty of title on contracts for the sale of 
personal property, whether executory or not, does not arise in this case, 
as we cannot but see that there was an express warranty between the 
parties. In many of the earlier cases the question is whether an 
-affirmation was a warranty. Lord Holt, in Medina v, Stoughton, 1 SalL 
210, S. C. 1 Ld. Raym. 593, says that, <( where one having the posses- 
sion of any personal chattel sells it, the bare affirming it to be his 
amounts to a warranty." Much more is this the case if he affirms that 
he has the right to convey the exclusive title to it. We cannot take 
the receipt as the only evidence of the contract, but must look at the 
correspondence also. Now I think the second letter set out shows very 
strongly that the defendant meant to say that Monsieur Violet was one 
of the works which he there mentions, one of the works of his late 
father of which the copyright belonged to him. Coupling that letter 
with the receipt, I think there is an express warranty, making it un- 
necessary to consider the somewhat nice and minute points which were 
discussed in the judgment in Morley v. Attenborough, 8 Exch. SOO.f 

As to the other point. Sweet v. Cater is decisive that there was an 
equitable assignment to Bentley ; and the averment in the plea is con- 
fined to an equitable right. There' are cases in which a right to recover 
the price as money had and received on a consideration which has failed 
«9Qll ^^^^ he a sufficient remedy ; but the ""present is a case in which 
^ the special damage from the breach of warranty is considerable. 

CoLBRiDQE, J. — ^I did not hear the whole argument : but, upon so 
much as I heard, I agree with what has been said. 

Erlb, J., concurred. Judgment for plamtiff8.(a) 



(a) Reported by C. Blaekburn, Esq. 



The invalidity of a patent will not to the validity of the patent and in the 
entitle a purchaser to repayment of the absence of fraud : Hiatt v. Twomej, 1 
price, where there was no covenant as Dev. & Bat. Ch. 315. 



17 ADOLPHUS & BLLIS. N. S. 294 



WILTON, Executor of MARY STINTON, v. DUNN. Jutw 6. 

Uie ud oMapatioo. Pie* : tb»fc the oooapatioii of the premiaes wm bj the Uave of plaintiff 
who wu mortgagor in possession : that, ajfler sach ooeupation, the mortgagee, who was entitled 
to the land during the whole period of occupation, gave notice to defendant, claiming the 
mesne profits: that defendant until such notice was ready and willing to pay plaintiff: and 
that, from the time of such noUee, he was liable to paj the mortgagee. 

Held, no defence at law. Qvcsre, whether actual payment to the mortgagee under pressure of 
this elaim would have been a defence. 

Assumpsit bj the executor of Mary Stinton. 1st count for use and 
occupation of certain premises, and undivided shares of premises, in the 
time of the testatrix. 2d cbunt on an account stated with the testatrix. 
3d coant on an account stated with the executor. 

Plea, as to 1002. parcel of the moneys in the 1st count, lOOZ. parcel. 
of the moneys in the 2d count, and 100/. parcel of the moneys in the 
3d count, that Mary Stinton was seised in her demesne as of fee tail of 
and in the premises in the first count mentioned, and, being so seised, 
by indenture enrolled, conveyed them to the use of William John Holt 
and Henry Wilton the younger, their executors and assigns, for the 
term of ninety-nine *year8, upon trust, at the request of Mary r^gqc 
Stinton, to raise a sum of money by mortgage ; and, subject to ^ 
the mortgage term, to uses over ; whereby Holt and Wilton by virtue 
of the statutes became possessed of the premises for the term of ninety* 
nine years. The plea then showed an assignment by Holt and Wilton 
of the residue of the term of ninety-nine years to Louisa Smith, by 
indenture, by way of mortgage, to secure the sum of 2002., with the 
common proviso that if the 200/. was paid within six months the assign- 
ment should be void. Averments that the six months elapsed, and that 
the 200/. was not paid and still continued unpaid. The plea then pro- 
ceeded to aver that the said Louisa Smith did not, nor did any assign 
or assigns of L. Smith, enter upon or take possession of the said 
undivided parts and shares at any time before the commencement of 
this suit ; but, from the time of the making the last-mentioned indenture 
until the defendant became indebted to the said Mary Stinton in the 
said first-raentioned parcel, the said M. S., as mortgagor in possession 
but not otherwise, had the control, management, and disposition of the 
same undivided parts and shares : that, while the said M. S. had such 
control, management, &c., and while the said M. S. had no other title 
to the same than as such mortgagor in possession, defendant, at his 
request made after the making of the last-mentioned indenture, to wit, 
on, &c., and, by the sufferance and permission of the said M. S., granted 
after the making of the said last-mentioned indenture, to wit, on, &;c., 
for the time in the first count mentioned, which commenced after the 
making of the last-mentioned indenture, held, occupied, and enjoyed 
the said undivided parts and shares as in the first count mentioned, and 

b2 



2»6 WILTON V. DUNN. T. T. 1861. 

«9Qftl ^^61^0^7 became and was indebted to the said M. S. in *the said 



•^296] 



sum of 1002., parcel as first aforesaid. That the said LoaiM 



Smith, as sach mortgagee as aforesaid, was, under and by virtue of the 
last-mentioned indenture, from the time of the making thereof until and 
during the whole of the said time while the defendant so held, &c., u 
aforesaid, entitled to the immediate actual possession of the said an- 
divided parts and shares, and, at and from the time when defeDdant 
became so indebted as last aforesaid, and until and at the commence- 
ment of this suit, was, and yet is, entitled by action of trespass to 
recover from defendant the value of the profits of the said undivided 
parts and shares for and in respect of the said time while the said 
defendant 90 held, occupied, possessed, and enjoyed the same as afore- 
said. That, after defendant became indebted to the said M. S. in the 
said parcel, and before the commencement of this suit, to wit, on, &g., 
the said Louisa Smith, then being justly entitled to the said mortgage 
debt of 200Z., and to recover the value of the said profits as aforesaid, 
assigned to Edward Gaubert all her right to and interest in the said 
mortgage debt of 2002., and the value of the said profits which she the 
said Louisa Smith was so as aforesaid entitled to recover from the 
defendant in respect of the time while he so held, occupied, possessed, 
and enjoyed the said undivided parts and shares, and authorized the 
said E. Gaubert to use the name of the said Louisa Smith for the 
recovery of the value of the last-mentioned profits in whatever manner 
might be necessary. That afterwards, and before the commencement 
of this suit, to wit, on, &c., the said E. Gaubert gave defendant notice 
of the said assignment to him, and required the defendant to pay to him 
the said E. Gaubert the said first-mentioned parcel in which the defend- 
*SQ71 ^^^ ^^ ^^ indebted as aforesaid, and which *did not exceed the 
^ amount of the value of the profits, which amount the said E. 
Gaubert was then and still is entitled to recover in the name of the said 
Louisa Smith from the defendant. That, from the time when defend- 
ant became indebted to the said M. S. in the said first-mentioned parcel 
until and at the time when the said notice was so given to him as afore- 
said, defendant was ready and willing to pay the first-mentioned parcel 
to the said M. S. And, that, from the time when the said notice was 
so given hitherto, defendant has been and yet is liable to pay the same 
to the said E. Gaubert. Averment that the said accounts in the second 
and last counts respectively mentioned, so far as they relate to the said 
secondly and thirdly mentioned parcels, were so stated as in the decla* 
ration mentioned of and concerning the first-mentioned parcel, and of 
and concerning no other money whatsoever. Verification. 

Demurrer, assigning as causes that the plea was an argumentative 
denial : and others which it is not necessary to notice. (a) Joinder. 

(o) Clea§by, for the plaintiff; in the ooune of bia argument relied on seyeral objections to th« 
manner in wbicb tbe title waa pleaded : but, aa the Court decided irrespeotirelj of them, tb«j 
are not Airther noticed. 



17 ADOLPHUS & ELLIS. N. S. 297 

Oleoihfy for the plaintiff. — AssumiDg the plea to be well pleaded in 
form, it is bad in sabstance. All the cases on the sabject are collected 
io the notes to Moss v. Gallimore (1 Doug. 279) in Smith's Lead. Ca., 
1 Smith's Leading Gases, 810. It was supposed in Pope v. Biggs, 9 B. 
A C. 245 (E. C. L. R. vol. 17), and Waddilove v. Barnett, 2 New Ga. 
538 (E. C. L. R. vol. 29), that notice, given to a person who had been 
let into possession by the mortgagor after the legal ^estate had r^e^qa 
been coDveyed to the mortgagee, requiring him to pay his rent ^ 
to the mortgagee, entitled the latter to recover the arrears of rent : but 
that is overruled ; Partington v. Woodcock, 6 A. & E. 690 (E. G. L. R. 
vol. 33), Evans v. Elliot, 9 A. & E. 842 (E. G. L. R. vol. 86). It is 
clear that the notice in this case cannot change the contract under 
which the defendant had already become indebted to the testatrix, so 
88 to eDable Louisa Smith to sue on that contract. [Patteson, J. — 
Why do you say that is clear ? I, indeed, think it impossible that the 
mortgagee could under such circumstances recover in an action on con- 
tract : but other Judges entertain a different opinion. I never could 
g understand it. Erle, J. — The plea here does not rest the defence on 
the supposed effect of the notice in enabling the mortgagee to sue on 
the contract, but on the ground that the defendant may be compelled 
to pay this very sum as mesne profits, and that he has received notice 
of that liability ; but it is liability only. He does not say he has paid 
the money to any one. Lord Gampbell, G. J. — Supposing that there ^ 
are no formal objections to the plea, the question raised on this record 
seems to be, whether a liability of this kind, which may or may not end 
in an actual payment, is a good defence to an action.] In all cases in 
which there is an outstanding legal estate, the tenant in possession may, 
in the same manner, be obliged to pay the mesne profits to him who has 
the right to bring ejectment. Therefore, if this plea is good, a tenant 
should always be allowed to plead that the legal estate is outstanding 
in one who claims the rent, and threatens to bring ejectment. Such a 
plea is bad even when the tenant has under compulsion *of that r^onq 
threat paid the rent ; Boodle v. Gampbell, 7 M. & G. 886 (E. cA 
L. R. vol. 49). [Erlb, J. — If we take notice of what a mortgage is in 
equity, the mortgagee is privy to the demise by the mortgagor in pos- 
session. Lord Gampbell, C. J. — There is great difficulty in our 
noticing, at law, the nature of the equitable interest of the mortgagor. 
When there is a legal charge on the land, as in the case of a head land- 
lord and a mesne tenant, an actual payment of the head landlord's rent 
by the puisne tenant, under pressure of a distress, would be an answer 
pro tanto to an action by the mesne tenant for his rent, on the principle 
that the tenant below has been obliged to pay a charge on the land 
which his intermediate landlord ought to have paid. But a mere liabi- 
lity to be distrained on would be no answer.] 
Keatingj contrd.. — The relation between mortgagor and mortgagee 



WILTON V. DUNN. T. T. 1861. 



jdX law is that the mortgagor is tenant at sufferance to the mortgagee. 
[Patteson, J. — ^I can never agree to that. I know there are loose 
expressions in the books as to his being tenant at will, or tenant at suf- 
ferance : but he is not, in truth, a tenant at all.] At all events the 
mortgagee is entitled to recover the rent from the tenant, as mesne 
profits. [Lord Campbell, C. J. — He may bring ejectment and recover 
the mesne profits with or without notice. Tour argument therefore 
goes so far as to say that the existence of the unsatisfied mortgage is 
in itself a bar. Actual payment may be good on the ground that the 
mortgagee is the authorized agent of the mortgagor to receive the rents: 
but is there any precedent of a plea like this? A defendant may 
4" ^001 *^^ many cases be in great danger from cross claims, from which 
^ a Coiirt of law cannot relieve him. The threat of the mortgagee 
may afford a ground for going into equity for relief: but can it he a 
plea in bar at law ? Waddilove v. Barnett, 2 New Ga. 538 (E. C. L. 
R. vol. 29), does not go so far as we must go if we support this plea. 
Patteson, J. — In Mr. Smith's note (a) to Moss v, Gallimore, Doug. 279, 
it is said : <( As the mortgagor ceases to be entitled to the rents upon the ^ 
mortgagee's giving the tenant notice, it follows that the mortgagor can- 
not afterwards maintain any action for use and occupation against him, 
either for rent which accrued due after the notice, or for rent which 
accrued due before the notice but was unpaid at the time when the 
notice was given. But there is a difference between the modes in which 
the tenant must plead in the former and in the latter case. In the 
former case he should plead Non assumpsit, and will be allowed to give 
the mortgage ^nd notice in evidence, for < when the mortgagee gave 
notice that the future rent was to be paid to him, it follows that the 
defendant ceased to occupy by the permission of the mortgagor, bat by 
the permission of the mortgagee;' and, of course, such a defence 
amounts to a denial of the contract alleged in the declaration, which 
avers the defendant to have used and occupied the land by the permis- 
sion of the plaintiff, the mortgagor. But in the latter case, viz. where 
the rent became due before notice, but was unpaid at the time of 
notice, the tenant must plead his defence specially, for < the mortgagor 
bad a right of action against the defendant up to the time when the 
notice was given, and before the mortgagee required the rent to be paid 
*^OTI *^^ him:' so that the tenant, by setting up this defence, con- 
^ fesses that the right of action, stated in the declaration, once 
existed, but avoids it by matter ex post facto, viz. by the subsequent 
notice from the mortgagee." The propositions cited by Mr. Smith are 
from Waddilove v. Barnett. I think it a grave question whether the 
latter is not a fallacy. The point in truth did not arise in Pope v. 
Biggs, 9 B. & C. 245 (E. C. L. R. vol. 17) ; what fell from the Judges 
there were dicta merely. And I cannot comprehend how a right of 

(a) 1 Smith't Leading Caaei, Slf b, 2d ed. 



17 ADOLPHUS & ELLIS. N. S. 801 

action for the rents already due should be vested in the mortgagor 
before the notice, and the notice should undo that vested right of 
action and set up in lien of it a right of action in the mortgagee. It 
was so said in Waddilove v. Barnett ; but that case is beyond my com- 
prehension.] * 

Lord Campbell, C. J. — The plea is new ; and I am of opinion that 
this ingenious experiment should not be sanctioned. It calls on us, as 
a Court of law, to do that which we have no power to do. We cannot 
protect this defendant from the threat of the mortgagee. Had the 
tenant under compulsion of that threat actually paid the mortgagee 
what was due, it might have been a defence. But this plea does not 
allege payment : it is a plea of a mere threat which may or may not be 
carried into effect. No authority has been cited in support of such 
a plea ; and we ought not to make one. 

Patteson, J. — I cannot see how the notice can be said to make this 
money not recoverable by the mortgagor and recoverable by the mort* 
gagee, without denying *that the tenant held the premises by r«q/xo 
permission of the mortgagor. I do not see any way in which ^ 
the mortgagee could sue this tenant for rent : but it is said that he may 
bring ejectment, and recover the same sum as mesne profits, and that 
he has threatened to do so : that, however, is no plea at law. 

Erlb, J. — Had it been pleaded that the tenant actually paid the 
mortgagee under this threat, I should have been inclined to support the 
plea. There has been so much doubt as to the legal situation of mort- 
gagor in possession and mortgagee, that I say no more than that I 
think such payment might be a defence. But, as far as I can see on 
this plea, the present tenant may intend, after having enjoyed the 
land, to pay neither mortgagor nor mortgagee. 

Judgment for plaintiff.(a) 

(a) Reported bj C. Blaokbarn, Esq. 
See, aa to the right of the mortgagee oot of poisesslon to reooyer mesne profits, Turner v. 
Cameron's Coalbrook Steam Coal Company, 5 Exch. 932, f and Litchfield «. Ready, 5 Ezch. 939.f 
8m also Moantnoy «. CoUier, 1 B. A B. 030 (E. C. L. R. vol. 72). 

A mortgagor cannot maintain an and profits then due and unpaid as well 

action for the mesne profits before actual as those which may subsequently accrue, 

entry, although the condition has been and the mortgagor becomes entitled to 

broken and he has commenced an action them: Ibid. 

to foreclose: Wilder v, Houghton, 1 It has never been understood that 

Pickering, 89 ; Gibson v. Farley, 16 such a privity exists, as that a mortga^ 

Msu». 280 ; Majo v. Fletcher, 14 Pick, gee can compel the tenant of the mort- 

525; Clarke v. Curtis, 1 Orattan, 289. gagor to pay him the rent, whether the 

See Latimer v. Moore, 4 M'Lean, 110; lease was executed before or after the 

Hutchison v. Dearing, 20 Alabama, mortgage : Myers v. White, I Rawle, 

798. Notice from the mortgagee to 355 ; Weidner v. Foster, 2 Penn. Rep 

tlie lessee not to pay the rents or profits 23. 
to the mortgagor, intercepts the rents 
VOL. XVII. — 26 



S03 WILSON V, OVERSEERS OP LIVERPOOL. T. T. 1861. 



*^n^i *WILSON, Esquire, Appellant, v. The Overseers of LIVER. 
^^^^ POOL, and RAWDON and HORSFALL, Esquires, Respond- 
ents. June 7. ^ 

No appeal lay against an order of jastieet nnder atat. SAO Viet c. 126, n. 59, 63 (eee tttt 16 
A 17 Viot 0.- 97, 8. 98), acyudging that the settlement of a pauper iunatio sent bj parish offieen 
to an Asylum eonld not be ascertained and that saeh lunatic was chargeable tii the coonty, sod 
directing payment by th« ooimty treaaarer for the maintenaDce and other expenses of ths 
lunatic. 

Two justices of the peace for the county of Lancaster made the fol- 
lowing order under stat. 8 & 9 Vict. c. 126, s. 69,(a) dated 6th August, 
1850. 

<« County of Lancaster, to wit. Whereas heretofore, to wit, on the 
22d day of May, a. d. 1847, Henry Thompson, being a pauper lunatic, 
was, at the instance of an officer, to wit, one of the overseerd of the poor 
of the parish of Lirerpool in the said county, pursuant to the statute 
in such case," &o., << sent from and at the expense of the parish of Li- 
verpool in the said county to, and from thenceforth hitherto hath been 
and still is a pauper lunatic confined in, the Lunatic Asylum for the 
county of Lancaster, situate,'* &c., «but is not settled in the said parish 
of Liverpool, and it cannot be ascertained in what parish the said H. 
T. is settled : And whereas the county in which the said pauper was 
found, within the true intent and meaning of the said statute in that 
behalf, to wit, immediately before he was sent as aforesaid to the said 
Asylum, is the said county of Lancaster : And whereas the overseers 
of the poor of the said parish of Liverpool did, on the 5th day of July, 
1850, give to Robert John Harper the younger. Esquire, the clerk of 
*^Oil *^^^ peace, and to," &c. (the deputy clerks of the peace) of the 
-' said county, " notice to appear for the said county before Wil- 
liam Rathbone and Christopher Rawdon, Esquires, two of her Majesty's 
justices,'* &c., on, &c., at, &c., <(or before any two or more justices," 
&c., « to show cause why the said H. T. should not be adjudged by the 
said justices chargeable to the said county ; Now we the undersigned, 
two of Her Majesty's justices of the peace in and for the said county, 
being present together on the day and year and at the time and place 
mentioned in the said notice, and William Cleaver of Liverpool afore- 
said, gentleman, having appeared before us on behalf of the said clerk 
of the peace and deputy clerks of the peace in pursuance of the said 
notice : We the said justices, having thereupon inquired according to 
law into the circumstances of the case, and upon due proof upon oath 
before us now here had and taken, do find that all and singular the 
premises are true ; and, the contrary no.t having been shown, do, upon 
due proof upon oath before us also now here had and taken, hereby 

(a) Repealed by stat 16 h 17 Vict o. 97, s. 1. But see, as to the matters discussed in tliii 
sects. 98, 99, 108, 128. 



17 ADOLPHUS & ELLIS. V. S. 804 

order and adjudge the Baid H. T. to be chargeable to the said county 
of Lancaster. Given/' &;c. (Aagnst 6th, 1850.) 

By another order of the same date, under sect. 63 of the same act, 
addressed to Christopher Moore Wilson, Esquire, the treasurer of the 
count J, after reciting the facts jrhich led to the first-mentioned order, 
the proceedings to obtain it, and the substance of the order itself; recit- 
ing also that the said overseers had given notice to the clerk and deputy 
clerks of the peace and to the treasurer that, as soon as Thompson 
flhoald be adjudged chargeable to the county, they, the overseers, should 
apply to two justices to make an order upon the treasurer *for p^^qA/; 
payment of the after-mentioned expenses ; and reciting further *- 
that the overseers did, pursuant to the said notice, apply to two jus- 
tices for such order ; and that the said W. Cleaver appeared before the 
justices on behalf of the clerk and deputy clerks of the peace, and of 
the treasurer, in pursuance of such last-mentioned notice ; the two last- 
mentioned justices (upon due proof on oath, &c.) adjudged that expense 
to the amount of IZ. 10«. 6d. had been incurred on behalf of the said 
parish in and about the examination of the lunatic and his conveyance 
to the asylum, and that 20/. 6i. had been paid by the overseers to the 
treasurer of the a^lum for the lodging, maintenance, &c., of the luna«> 
tic, incurred within twelve months previous to the order ; and they 
directed the treasurer of the county forthwith to pay the same to the 
overseers ; and they likewise ordered him to pay a certain weekly sum 
fixed by the Committee of Visitors and deemed reasonable by the jus- 
tices) to the treasurer of the asylum for the future lodging, .&c., of the 
lunatic while he should be confined in the said asylum as a pauper 
lanatic. 

Notices of appeal having been given on behalf of the county treasurer 
against these orders, a special case for the opinion of this Court was 
stated by consent and by order of a Judge, under stat. 12 & 13 Vict, 
c. 45, s. 11. 

The details of the case* need not be stated. It appeared that the 
orders were duly served on 22d August, 1850. Quarter Sessions for 
the borough of Liverpool, and for the county, respectively, were held 
in October. The appellant served notices of appeal to the Epiphany 
Quarter Sessions for the county, under stat. 8 & 9 Vict. c. 126, s. 80, 
on December 5th, 1850 ; and he entered into recognisances in pursu- 
ance of the ^statute on December 16th. The objection to the 



appeal, on which the decision of this Court took place, was, that 



[*306 



no appeal lay against either- order. (a) The case concluded by stating 

(a) Tbe farther objectioDs were: The respondents "also object that, if an appeal does ]i« 
against either of the said orders, the Quarter sessions for the borough of Liverpool is the tribunal 
to whieh soeh appeal shonld have been made | and also object that such appeal ooold only be 
Dade at the Oetober Qnarter Sessions either for the eoanty or for the borough, and that the said 
appeal was too lat«; and also object that the appellant did not enter into recognisances forth- 
with, within the meaning of the 80th Motion of stat 8 A 9 Yiot o. 126; and also object that th« 



806 WILSON V. OVERSEERS OP LIVERPOOL. T. T. 1851. 

that, if the Court of Queen's Beuch should be of opinion, upon the ob- 
jections or any one of them, that the appellant was not entitled to prose* 
cute the appeal, judgment, in conformity with their decision, and for 
such costs as the Court should adjudge, might be entered up on motion 
at the County Quarter Sessions next, or next but one, after the deci- 
sion : if the determination should be for the appellant, judgment for 
hearing the appeal, and for costs, might be entered in like manner at 
either of the last mentioned sessions, and the appeal was to be tried on 
the merits at the same sessions. 

Pashlej/y for the respondents. — The proceeding to charge the county 
under sects. 59, 63, is not subject to appeal. The process would be 
inconvenient and useless, and evidently was not contemplated by the 
Legislature. Without an appeal, the county is sufficiently protected. 
*^071 ^^^^^ ^^^* ^^' when the justices are to adjudicate, the *clerk of 
^ the peace has notice, and may attend ; and the justices may sus- 
pend their adjudication for the purpose of making further inquiry. The 
order upon the county is not conclusive ; nor would a refusal of such 
order, on the ground that the lunatic was settled in a particular parish, 
conclude that parish. Sect. 58 empowers the justices <« at any time" to 
inquire into the settlement, and, upon satisfactory evidence, adjudge 
the same accordingly. And, by sect. 59, if the lunatic be adjudged 
chargeable to the county, they «may at any time thereafter in- 
quire as to the parish in which such lunatic is settled, and may procure 
such lunatic to be adjudged to be settled in any parish." No power 
of appeal ia given to the county in terms ; and the opportunity afforded 
to attend and show cause before the justices makes it probable that a 
subsequent appeal was not intended. [Patteson, J. — You say that, 
if the clerk of the peace, at the time of that hearing, has no knowledge 
on the subject, the order upon the county is good.] It is ; only another 
order may be substituted if the county afterwards discover a settlement. 
Then it is contended that, although the county has no appeal, as a pa- 
rish has, under sect. 62, an appeal lies under sect. 80. That, however, 
is against ('any order or determination of any justices under this Act, 
other than orders adjudicating as to the settlement of any lunatic pau- 
per, and providing for his maintenance." But the orders in this case, 
which, in law, constitute one instrument, according to Regina v. Tyr- 
whitt, 12 Q. B. 292 (E. C. L. R. vol. 64), do adjudicate <'as to" the 
settlement, by deciding that it cannot be ascertained ; and not only as 
to, but upon, the maintenance. An appeal would not lie merely against 



•^808] 



an order adjudging the *settlement.(a) [Erle, J. — The appeal 
against the order of maintenance disposes of the order on settle- 

appelUnt oanoot now dispute or object to these orders or either of them, he h»Ting h»d notice 
of the intention to make the same, having been present at the time the orders respecttTelj were 
made, and he not having shown sufficient cause against the making of the same orders, in th# 
Judgment of the same jnltices by whom the same orders were made." 
(«i) Begina v, St Pancras, 12 Q. B. 298 (E. C. L. R. Tol. M). 



17 ADOLPHUS & ELLIS. N. 8. 308 

ment incidentally. There is no appeal against this till the order of 
maintenance is made. Then one appeal lies against the joint order.] 
Sect. 80 is to be coupled with sect. 79, and is evidently limited to cases 
within that clause. It gives four calendar months for the appeal, a 
regulation quite anomalous in the case of appeals against orders upon 
settlement and maintenance, and different from that of sect. 62,' under 
which parishes and unions have their appeal. And it requires the party 
giving notice of appeal forthwith to enter into recognisance to try, and 
abide the order of the Court ; a condition not likely to be imposed 
upon the treasurer of a county. 

Peaeoeky contr^. — If these be not, strictly, orders " adjudicating as 

to the settlement" of the lunatic, « and providing for his maintenance," 

an appeal lies, under sect. 80. And it is important that there should ' 

be such an appeal : otherwise the mere service of a notice upon the 

Clerk of the peace might be sufficient in any case to throw all the 

expenses of a lunatic upon the county. The parish, in such a case, is 

not likely to take much interest in investigating the settlement. 

[CoLBRiOGE, J. — The burden lies upon the parish, under sect. 59, of 

satisfying the justices that « it cannot be ascertained in what parish" 

the «< lunatic is settled." That requisite would not be fulfilled by the 

mere circumstance that nothing was stated to them upon the subjcot. ] 

At any rate the county ought to have an appeal. [Lord Campbell, 

C. J. — Against what ?] Against an adjudication that the settlement 

cannot be ascertained. [Lord Campbell, C. J. — That is merely in 

vacuo. Erle, J. — The case supposed by *sect. 59 is probably r<,qnq 

that of a wandering lunatic. Why should any considerable bur- *- 

den of proof be thrown in the first instance upon the parish from which 

he is sent to the asylum ? Lord Campbell, C. J. — The order depends 

only upon his being sent from the parish, and upon the fact that his 

settlement cannot be ascertained.] The Legislature cannot have 

intended that two justices should determine, without appeal, as between 

the county and a parish, that a pauper was not settled in the parish. 

[Erle, J. — ^The justices are empowered to adjourn the inquiry if they 

see a reasonable cause for doing so. Coleridge, J. — Their order, after 

all, is only in the nature of an interim order.] {Peaeoek then admitted 

that he coald not carry the argument further.) 

Lord Campbell, C. J. — ^For the reasons which have been given, the 
order mast be confirmed. 
Patteson, Colbbidqe, and Erle, Js., concurred. 

Judgment for the respondents. 

B 



809 REOINA «. aRBAT WESTERN RAILWAT CO. T. T. 1851. 



The QUEEN v. The GREAT WESTERN RAILWAT COMPANY. 

June 7. 

(The GREAT WESTERN RAILWAT OOMPANT v. TILEHURST.) 

Reported 16 Q. B. 879 (E. C. L. R. vol. 69). 
See 15 Q. B. 1085 (E. 0. L. R. vol. 69). 



.-,.T *FRANCIS ALCOCKE MASSET v. WILLIAM GOODALL 
^^^^ June 10. 

ABsnmprit Connt : thsi defendant bad become tenant to plaintiff on eertain tennc and stipo* 
lationay and among otben, tbattbe rent tbould be payable balf-yearly, tbat defendant "sboald 
net sell any straw, 4o., or manure, grown or produced upon the said farm, witbont the writtea 
lioense" of the plaintiff, under oertain penalties, and ''that the penaltiee should be con- 
sidered as additional rent, and should be recoverable by distress or otherwise as rent:^ Aver- 
ments, that ** in consideration thereof" defendant promised plaintiff to pay all such penalties 
as he might be liable to pay plaintiff aecording to the said stipulations ;" and that defendant, 
without license, sold straw grown on the premises during his tenancy. Breach : non-payment 
of penalties in respect thereof. Plea : that the straw was sold after determination of the 
tenancy. Demurrer. 

Held by Lord Campbell, C. J., and Patteson, J., that the promise to obsenre the terms one of 
which was payment of penalties, was supported by the bygone oonsideration of having 
become tenant on those terms, and tbat the stipulation must be construed to be not at any 
time to sell straw grown during th« tenancy : Brie, J., dissentiente, and holding that the 
stipulation should be ooostrued to be, not during the tenanoy to sell straw, 4e., grown during 
the tenancy. 

Assumpsit.— For that, whereas, to wit, on, &c., «< defendant had 
become and was tenant from year to year to plaintiff of a certain farm," 
&c., <« situate,*' &c., <(at the yearly rent of 2602., and on the following 
(among other) stipulations and conditions, viz. that the said rent should 
be payable half-yearly on the 25th day of March and the 28th day of 
September in each year ; that the defendant should not sell any hay, 
straw, or fodder, turnips, or mangelwurzel, or manare, grown' or pro- 
duced upon the said farm, without the written license of the landlord, 
under the following penalties, that is to say, for all hay so sold a 
penalty after the rate of 11. per load, for all straw so sold a penalty 
after the rate of 52. per load," &c. (fixing other penalties for all turnips 
or mangerwurzel and all manure so sold) : <« and that the said penalties 
so made payable as aforesaid should be considered as additional rent, 
and should be recoverable by distress or otherwise as rent : and, in 
♦^111 <^o^Bi^^i^A^i<»^ thereof, he the defendant then promised the *plain- 
-' tiff that he the defendant would pay the plaintiff all such penalties 
as he the defendant might be liable to pay the plaintiff according to 
the said stipulations and conditions for and in respect of any hay, 
straw," &c., «( which should be grown or produced upon the said fiurD 



17 ADOLPHUS & ELLIS. N. S. 811 

and sold by the defendant without the written license of the plaintiff:" 
Averment : that defendant continued tenant to plaintiff upon the said 
fltipolations and conditions until the said tenancy determined; and that 
defendant did, to wit, on, ftc, without the written license of plaintiff, 
sell to a certain person, to wit, &c., ten loads of straw grown on the 
said farm during the said tenancy: whereby defendant according to his 
promise is liable to pay plaintiff 51, for each of the said loads of straw 
80 sold by defendant as aforesaid, amounting in the whole to 502. 
Breach, non-payment. 

Plea. That the said straw so in the declaration alleged to have been 
sold was sold by defendant after the determination of the said tenancy 
in the declaration mentioned, to wit, on, &o. ; and not otherwise. Veri- 
fication. 

Demurrer, assigning as causes : That the plea raises an immaterial 
issue, and neither traverses nor confesses and avoids the breach of con- 
tract alleged : that it is immaterial whether the straw alleged to have 
been sold by defendant was sold by him before or after the determina- 
tion of the tenancy, provided that it was straw grown on the said farm 
daring the tenancy, &c. 
The Court called upon 

Cowling^ in support of the plea. — The stipulation is in effect, that 
the tenant shall not sell the straw, &c., during the tenancy ; that is 
shown by the agreement '''that the penalties shall be recoverable y^^^ ^ 
as rent; which could not be if they were incurred after the '- 
tenancy expired. And this is a reasonable construction ; for there is 
nothing in the agreement rendering it imperative on the tenant to con- 
sume the farm produce on the farm. He may carry it away and con- 
sume it on his new farm if he has one ; but, if he has no farm, he must, 
according to the construction put on the agreement by the plaintiff, 
suffer it to rot, or make a^ present of it to the landlord; for he has no 
power to consume it on the farm which is no longer his, and there is 
nothing to enable him to compel the landlord to pay for any farm pro- 
duce left on the farm. [Lord Gahpbbll, G. J. — How do we know 
that ? The declaration professes to set out some only of the stipula- 
tions. There may be a stipulation that the landlord shall buy at a 
valuation what fara^ produce is left.] If there were such a stipulation, 
it would afford an argument in favour of the plaintiff's construction ; • 
and, as he has not set it out in the declaration, it must be taken, as 
against him, that there is no such stipulation. Further : the considera- 
tion is a bygone one, and can support only the promise implied by law. 
The law will not imply from a tenancy a promiae as to the conduct of 
the tenant after the tenancy is determined. 

C. J. Bojflejf^ for the plaintiff^ was then called on. — The parties have 
agreed on the terms on which the defendant was to be tenant. They 
might if they pleased have restricted the stipulation, as to not aelling 



812 M ASSET v. GOODALL. T. T. 1851. 

straw, &o., to the time of the tenancy ; bat they have not thought fit 
to do so. The Court will not put a sense on the words different from 
^Q^o-i that which they naturally ""bear, without some strong reason. 
^ Here the reasonable construction is the natural one. 

Lord Gahpbbll, C. J. — I am of opinion that the plaintiff is entitled 
to judgment. The declaration alleges that the defendant became 
tenant to the plaintiff t<on the following (among other) stipulations 
and conditions." So it does not profess to set out all the stipulations 
and conditions, but only such as are broken, and in respect of which 
the action is brought. It then proceeds to state a condition «< that the 
defendant shall not sell any hay, straw," &c., «< grown or produced upon 
the said farm, without the written license of the landlord." Here is 
an allegation of a positive and unqualified stipulation, that the defend- 
ant should not sell straw grown on the farm ; and it is assigned, as 
a breach of it, that he did sell straw grown on the farm during the 
tenancy: but it appears that the sale was not during the tenancy. 
The question then is, Whether that breach be well assigned ? I think 
it is ; it comes within the express words, and I think within the inten- 
tion, of the agreement. If the stipulation were confined to sales during 
the continuance of the tenancy, there would be nothing to prevent the 
tenant, during the last year, from hoarding up all the produce of the 
farm, spending no part of the manure on the farm, and, the day after 
the tenancy determined, selling it at all, leaving the farm ruined and 
exhausted. I do not think that such a construction would make the 
agreement reasonable as between landlord and tenant. It is said that 
on the other construction there is a hardship on the tenant, who may 
not be able to use all the farm produce while he is tenant, and is pro- 
^Q-fl^-i hibited from selling it afterwards: *but we have not all the 
-* stipulations set out ; and, for aught I know, among those not 
set out may be a stipulation that the landlord or the incoming tenant 
shall pay for all that the outgoing tenant leaves behind. Such a pro- 
vision would obviate this supposed hardship. But, at all events, this 
breach comes within the express words of the agceement, and, as I think, 
within its spirit also. 

Patteson, J. — I am entirely of the same opinion. The declaration 
alleges that the defendant had become and was tenant from year to 
year to the plaintiff on the following (among other) stipulations ; and 
the promise is laid in consideration of that. It is not alleged that he 
became and was tenant at his request ; but I take it that it is only 
necessary to lay a request where the consideration was wholly bygone 
and executed at the time of the promise, and that it is not necessary 
when it is a continuing consideration, as this is, where the terms would 
oontmue after the promise throughout the whole tenancy. King v. 
Sears, 2 G. M. & R. 48 ;t S. G. 5 Tyr. 587, and other cases, I thiuk, 
establish that distinction. Then the declaration sets out some of the 



17 ADOLPHDS & ELLIS. N. S. 314 

terms, and, among them, that the defendant shall not sell straw grown 
upon the farm without a written license; nothing is said to limit the 
restriction to a sale during the tenancy. The stipulation is expressed 
▼ithout restriction, that he shall not sell straw under a penalty ; and 
in consideration of the premises the promise is laid to pay all penalties 
incurred according to the stipulations. Mr. Qowling says that the con- 
sideration will not support the promise. *Now I agree that « p^„ 
past consideration will support the promise implied by law, and, ^ 
as a general rule, will support no other promise. But here the defend- 
ant become tenant to the plaintiff on certain terms : whatever those 
terms were, the law wi>uld imply a promise to observe them ; and the 
promise laid here is no more than a promise to observe one of those 
terms ; that is, to pay penalties according to those stipulations. The 
question therefore comes to be whether it is a breach of those stipula- 
tions, to sell, after the determination of the tenancy, produce raised on 
the farm during the tenancy. If he had sold it during the tenancy, it 
would have been a clear breach. That the defendant waited till the 
term had expired before he sold, I think, makes no difference. Thf 
penalties are to ««be considered as additional rent*' and to be «< recover- 
able by distress or otherwise as rent." That I think only means that 
the parties agreed that the plaintiff was to have the same remedies for 
recovering the penalty that he would have for his rent : and, though 
one remedy to recover rent, namely, distress, does not apply after the 
determination of the tenancy, others, such as this very action of as- 
sumpsit, remain. I therefore see nothing in this stipulation to show 
that the time of sale was material ; and it seems to me that it was not. 
Erle, J. — I pat A different construction on the terms set out in this 
declaration. The defendant became tenant on stipulations, amongst 
others, that the rent should be payable half-yearly, and that the de- 
fendant should not sell any straw, &o., produced on the farm without 
license, under a penalty. Some of these stipulations must be confined 
to the time of the tenancy. They are entered *into in consi- r^ito-ta 
deration that the relation of landlord and tenant is created : ^ 
and I think that the implied qualification «« whilst the relation of land- 
lord and tenant continues*' pervades them all. 9he whole of the stipu- 
lations are not set out^ but, if there are any affecting the construction 
of those set out, it is the plaintiff's fault that they are not before us. 
Taking it that we have all that is provided for on this point, and that 
the agreement is imperfect, which is what I infer from the declaration, 
there is nothing provided as to the landlord taking the produce at the 
end of the term. The question therefore arises, whether on these 
stipulations the tenant is, at the end of the term, bound to leave the 
produce as manure for the landlord without any remuneration, or is 
entitled, after the expiration of the term, to use it as his own. It 
seems to me that, on the construction of these terms, he is entitled to 
VOL. XVII. — 27 b2 



816 MASSEY v. GOODALL. T. T. 1851. 

tise it as his own. He has done so ; and I think the defendant entitled 
to judgment. Judgment for plaintiff.(a) 

(a) Reported by C. Blackbnrn, Esq. 



♦817] *HOLLOWAY v. THE QUEEN. , June 11. 

(Error from the Quarter Sessions for the COVENTRY division of 
WARWICKSHIRE.) 

Indictment under stat 4 G. 4, c. 64 (for eontolidating the laws na to gaols), ■. 43, which enacts tbtt, 
if any person ihall, ** by any means whatever/' aid any prisoner to escape, or in attempttog tA 
escape, from any prison, he shall be guilty of felony, and, on conviction, be transported fcr 
any term not exceeding fourteen yean. The first count alleged that the gaol aAer-mentioned, 
situate at, Ac, in the city of Coventry, was a gaol to which, at the time of the committiD; of 
the after. mentioned offence, stat 4 G. 4, o. 64, extended. -That T. was a prisoner in the laid 
gaol ; and that defendant feloniously did aid and assist T., then and there being such prieoBer, 
in attempting to escape from the said gaol, against the form of the statutes. 

Held by Lord Campbell, C. J., and Patteson, J. (on writ of error, after conviction and jadgmest 
of fourteen years' transportation), a good count, under this statute, though it did not ipccify 
any means by which defendant aided T. in attempting to escape. And though it did not 
allege in direct terms that T. attempted to escape. 

The second count stated that, at the time of the committing of the offence, T., being a prisoacr 
in the said gaol, was meditating and endeavouring to escape therefrom, and, in order thento. 
had procured a key with intent to effect his escape by means thereof, and had made to defead- 
ant, then and there being a turnkey of the said gaol, certain overtures and promises to indaee 
him to aid T. in escaping therefrom, and so and in manner aforesaid, was attempting to 
escape from the said gaol: And that defendant then and there, on, Ac, and while T. wai Boeb 
prisoner in the said gaol, with force and arms, at the parish, Ac, feloniously did recetre the 
said key, then and there being fitted to and capable of opening divers locks in the said gaol 
whereby T. was then and there secured therein, with intent thereby to enable T. to eMspi 
from the said gaol : And so the jurors, Ac, say that defendant then and there, on, Ic^ u 
manner and form in this count mentioned, feloniously did aid and assist T., then and tbere 
being such prisoner, in so attempting to escape from the said gaol in thia count meotioBcd. 
against the form of the statute, Ac 

There were several other counts, not materially differing from these respectiTely. 

Held, on error brought as above : 

That an attempt to escape, and the means, appeared (if it were necessary to show them) witk 
suflBcient particularity by the introductory part of the count 

That an offence of aiding, within stat 4 G. 4, c 64, sufficiently appeared. 

That the count was not double. 

That the count was not bad for want of a more particular venue to the acts charged in the iotro- 
dttctory part as an attempt by T. to escape. 

That the general averment of the gaol being a gaol to which the piovifions of stat 4 0. 4, e. M. 
applied, was sufficient, without showing how it came within them. 

And that it was not necessary to show more particularly that C^entry gaol was a gaol for the 
county, within stat 6 A 6 Vict c 110, s. 3. 

That the count was not bad as charging an accessory without including the principal, or aveiria^ 
that he bad been convicted ; the aiding, under stat 4 G. 4, c 64, s. 43, being a snbBtantiv* 
offence. And that, at all events, the objection would have been too late, after defendant hid 
taken his triat 

That it was not necessary to show that the prosecution was commenced within a year after th« 
offence, as was required by stat 16 G. 2, c. 81, s. 4. 

TiMt, supposing several counts of the indiotment to aver substantially the same fiMts, witheot 
distinguishing one narrative from another by the term "afterwards," or any similar expresneai 
the indictment was not bad for duplicity, as the Court would not assume thai the same offeace 
was repeatedly charged. 

The caption stated that the indictment was found at the Sessions holden at Warwick* ia •■' 
for the county of Warwick, and, by adjournment thence, at Coventry, in and for the »■• 



17 ADOLPHUS & ELLIS. N. S. 317 

00DDt7, flpoB the oath of A., B^ ke., good mad lawful men of the ooonty, then and there ewon* 
to inquire for the body of the coanty. Held a suiBcient caption under the Aot 6 A- 6 Vict 
e. 110, annexing the county of the city of Coventry to Warwickshire. 
H«Id ftlM that, if any one eount of the indietment waa good, the Court might, under ttal 11 A 
12 Viek ^ 78, §. 6, pronounoe Judgment^ or direet the Seeiiont to proaounoe it» on the good 
eount. 

Thb plaintiff in error in this case was convicted at the above-men- 
tioned Quarter Sessions, under stat. 4 G. 4, c. 64, s. 43.(a) The caption 
of the indictment was as follows : 

♦"Warwickshire, to wit. Be it remembered that, at the Ge- |-,oio 
neral Quarter Sessions of the peace of oar Lady the Queen, ^ 
bolden at Warwick inland for the said county, on," &c. (30th December, 
1850), « and from thence continued by adjournment and holden at the 
City of Coventry in and for the said county of Warwick, on," &c. 
(January Ist, 1851), « before William Dickins, Esquire," «< and others," 
tc.y << keepers of the peace," &c., (<and also justices of the said Queen 
appointed to hear and determine divers felonies, trespasses," &c., («done 
and committed in the said coanty, and of the quorum *and so r^toiq 
forth, upon the oath of Samuel Gibbon," &c., «« good and law- '- 
fa] men of the county aforesaid, then and there sworn and charged to 
inquire for our said Lady the Queen and the body of the said county, 
it 18 presented in manner," &c. 
. The first count was as follows. 

Warwickshire, ^ The jurors for our Lady the Queen upon their 
Coventry division, V oath present : That the gaol hereinafter in the first 
to wit. J three counts of this indictment mentioned, to wit, 

the gaol of our Lady the Queen at Coventry, in and for the Coventry 
division of the county of Warwick, being situate at the parish of the 
Holy Trinity in the City of Coventry, in the said Coventry division of 
the county of Warwick, is a gaol to which the provisions of a certain 
Act of Parliament made and passed, ke. (4 G. 4, c. 64), « for consoli- 
dating and amending the laws relating to the building, repairing, and 
regulating of certain gaols," did at. the time of the commission of the 
offence hereinafter in the first three counts of this indictment mention- 
ed, and still do, extend. And the jurors, &c., further present that here- 
tofore, viz., OB the 18th day of December, a. d. 1850, Robin Thomp- 
son was a prisoner in the said gaol, and that one Henry Holloway, late 
of the parish of the Holy Trinity, in the City of Coventry, in the said 

(<r) Stet 4 G. 4, e. 64, ■. 48, euMti : "That if may penon shall eonrey or eanie to he oonveyed 
iato uj prison to whieh this Aot shall extend, any mask, viior, or other disguise, or any instm- 
nent or anns proper to fiioiUtate the escape of «ny prisoners, and the same shall deliver or oanse 
to be delirered to any prisoner in such prison, or to any other person there, for the use of any 
saeh prisoner, withoat the oonsent or privity of the keeper of sneh prison, every saoh person 
ihall be deemed to have delivered such viior or disguise, instniment or arms, with intent to aid and 
Msist each prisoner to esoape or attempt to eseape ; and if any person shall, by any means whaU 
ev«r, ud and assist any prisoner to eseape or in attempting to eseape from any prison, every 
perMD §0 offending, whether an eseape be aetually made or not, shall be goilty of felony, and 
beiog eoaviotsd thereof, shaU be transported beyond the seas for any term not ezoeeding foafw 
teen years." 



819 , HOLLOWAY v. THE QUEEN. T. T. 1851. 

division of the county of Warwick, labourer, on the day and year last 
aforesaid, with force and arms, at the parish aforesaid, in the said Co- 
ventry division of the said county of Warwick, feloniously did aid and 
assist the said R. T., then and there being such prisoner as aforesaid, 
in attempting to escape from the said gaol, against the form of the 
statutes in such case, &c., and agains.t the peace, &c. 
*^off\ *Second count. And the jurors, 4c., do further present : Tbat 
-* heretofore, and before and at the time of the committing of the 
oiTence hereinafter in this count mentioned, the said Robin Thompaon, 
being a prisoner in the said gaol, viz., the snid gaol of our Lady the Queen, 
at Coventry, in and for the said Coventry division of the county of War- 
wick, so situate as aforesaid, was meditating, projecting, and endea- 
vouring to procure and effect his escape from the said gaol other^rise 
than by due course of law, and in order thereto had procured a certain 
key, being the key hereinafter mentioned, to be made and constructed 
for the use of him the said R. T., with intent to effect the said escape 
of the said R. T. by means of the said key, and also had made and 
caused to be made to the said Henry Holloway, then and there being a 
turnkey and having authority in the said gaol, certain overtures and 
promises whereby to' induce and persuade the said H. Holloway to aid 
and assist the said R. T. to escape from the said gaol, and so in man- 
ner aforesaid was endeavouring and attempting to procure his escape, 
and to escape, from the said gaol: And the jurors, &c., further present 
that the said H. Holloway, not regarding his duty in that behalf, then 
and there, viz., on the day and year aforesaid, and whilst the said R. T. 
was such prisoner in the said gaol as aforesaid, with force and arms, at 
the parish aforesaid, in the said Coventry division of the said county 
of Warwick, feloniously and designedly did procure, and receive, and 
take into the custudy and possession of the said H. Holloway the said 
key, then and there being adapted, and fitted to, and capable of open- 
ing and unfastening divers locks in the said gaol, whereby the said B. 
^oQi-i T. was then and there secured in the said gaol, with intent 
■* *thereby and by means thereof to enable the said R. T. to 
escape from the said gaol and go at large whithersoever he would : And 
so the jurors aforesaid upon their oath aforesaid, say^hat the said H. 
Holloway then and there, viz., on the day and year aforesaid, with force 
and arms, at the parish aforesaid, in the said division of the said county 
of Warwick, in manner and form in this count mentioned, feloniously 
did aid and assist the said R. T., then and there being such prisoner as 
aforesaid, in so attempting to escape from the said gaol as in this count 
mentioned, against the form of the statutes, &c., and .against the 
peace, &c. 

The third count, after an inducement in nearly the same words afl 
that in the second, charged that defendant, not regarding his duty in 
that behalf, then and there, to wit on the day and year aforesaid, with 



17 ADOLPHUS & ELLIS. N. S. 321 

force and arms, at the parish, &c., feloniously did aid and assist the 
said R. T., then and there being sach prisoner as aforesaid, in so at- 
tempting to escape from the said gaol as in this coant mentioned, against 
the form of the statutes, &c., and against the peace, &c. 

The fourth count recited a committal of Thompson by a justice for 
trial on a charge of forgery, by warrant directed to the keeper of the 
common gaol at Coventry ; and that Thompson was in custody in a 
certain gaol, to wit, the said gaol in and for, &c., situate, &c. (as in the 
second count), on the justice's warrant. It then alleged that, after- 
wards and within one year heretofore, to wit, on 18th December, 1850, 
and while R. T. was a prisoner lawfully committed to and detained in 
the said gaol by virtue of the said warrant for the felony therein speci- 
fied, &c., defendant, with force and arms, &c., at, &c., feloniously was 
aiding and assisting the said B. T., then *and there being such p^cOQn 
prisoner, &c., and lawfully committed, &c., for the felony and ^ 
caase aforesaid, to attempt to make his escape from and out of the aaid 
gaol, against the form of the statute, &c. 

There were five other counts, which it is not considered necessary 
to state more particularly. . 

Plea, Not Guilty. 

The record then set forth the venire, directing that a "jury should 
immediately come before the said justices, &c., of good and lawful men 
of the county aforesaid, by whom, &c.: impannelling and coming of such 
jury; verdict that defendant is Guilty; and judgment by the Court 
<^That the said Henry Holloway be transported beyond the seas for the 
term of fourteen years.' 

Error was assigned on numerous grounds. Those mainly relied upon 
fill appear sufficiently by the argument. Joinder in error. 

Floods for the plaintiff in error. — The indictment is bad. [Lord 
Campbell, C. J. — If there is one good count, it is sufficient, in my 
opinion, to warrant a judgment, under the Btatue(a) passed since the 
decision of O'Connell v. The Queen, 11 CI. & Fin. 156.] The plaintiff 
in error will argue that point if necessary ; but there is no good count. 
The first count does not show the means by which the attempt to es- 
cape was aided. Merely to ^follow the words of the statute is r^tono 
not enough in an indictment for false pretences : the pretences ^ 
mast be set forth. The second count professes to state the means, but 
is open to objections, some of which apply to the first count also. It 
does not show that Thompson did in fact attempt to escape. The mere 
procaring a key is not such an attempt : if it were, the first part of 
Stat. 4 G. 4, c. 64, s. 43, would be superfluous. Procuring a loaded 

{a) Stat. 11 A 12 Vict c 78, 8. 6, enaots : "That wbeneTer anj writ of error iball bo brought 
npoD toy judgment on any indictment, information, presentment, or inquisition, in any criminal 
case, ftnd the Court of error shall reverse the judgment, it shall be competent for such Court of 
nror either to pronounce the proper Judgment or to remit the record to the Court below, in 
order that such Cour^ may pronounce the proper judgment upon inch indictment, information, 
prc'':atm«ul, or inquisition." 



HOLLOWAY V. THE QUEEN. T. T. 1851. 



pistol with intent to murder a person is not an attempt to murder 
him. Having in possession a picklock key with intent to commit 
burglary is not an attempt to commit burglary, but is n)ade a substan- 
tive offence by the Vagrant Act, 5 0. 4, c. 83, s. 4.(a) The conclud- 
ing words of the count, ^'and so the jurors,*' &c., <^say that the said 
H. H." (« feloniously did aid and assist," &c., do not remove the obje^ 
tion : they merely affirm that, by reason of the facts before stated, it la 
charged that Thompson attempted, &o. The narrative of facts is in 
itself too vague and uncertain. The defendant's taking the key into 
possession with intent to enable Thompson to escape is not an aiding. 
If procuring the key was attempting to escape, the defendant was not 
aiding the attempt, within the meaning of the statute, but was acces- 
sory after the fact to a misdemeanour ; for the act of Thompson was no 
more. The << meditating" to escape, and causing the key to be made, 
were things done before the defendant interfered. If receiving tke 
key from Thompson was in itself an offence by HoUoway against the 
statute, the count is double. The aiding ought to have reference to 
♦^911 ^^™® ^specific attempt at escape : this count does not show that 

^ the defendant even knew of any escape contemplated by Thomp- 
son. [Lord Campbell, C. J. — It says that defendant received the key 
from him ('with intent thereby and by means thereof to enable the 
said R. Thompson to escape."] The whole indictment is bad on the 
ground of duplicity ; for several of the counts, upon the face of them, 
evidently charge the same offence. [Coleridgb, J. — Supposing that 
one were an exact transcript of another, is there sufficient authority for 
aaying that the indictment would be bad? Lord Campbell, C. J. — If 
the counts were good in themselves.] According to the judgment of 
the Court of Queen's Bench in Campbell v. The Queen, 11 Q. B. 799, 
811 (E. C. L. R. vol. 68), it is a fatal defect. [Patteson, J.— The Court 
of Exchequer Chamber, in the same case, guarded against adopting the 
same doctrine.(i) And why must we assume that a man did not assist 
another to escape on as many different occasions as there are coants 
in the indictment?] The affirmative is not to be presumed. And, if 
this were intended, the words << afterwards, to wit," or some equivalent 
expression, should be used. [Lord Campbell, C. J. — In Campbell r. 
The Queen, it was not necessary to determine this point in the Qaeen's 
Bench or in the Exchequer Chamber.] Again, the counta are defec- 
tive because no venue is given to the attempts on Thompson's part, 
which the defendant is charged with having aided. This was the ob- 
jection taken to the fourth count of the indictment in Regina v, F. 
O'Conner, 5 Q. B. 16 (E. C. L. R. vol. 48). [Lord Campb.ell, C. J.-^ 
^„2c-i The local situation of the gaol appears ; how *could Thompson. 

■* being there, attempt to escape anywhere else? In Tilley's 
Case, 2 Leach, C. C. 662, it was held not necessary to state at all, by 

(a) See m to attempts generallji 1 Ru8«. on Cr. 46, et seq. 3d ed. 
(6) Campbell v. The Queen, 11 Q. B. 838 (E. C. L. B. ToUtlS). 



17 ADOLPHUS ft ELLIS. N. S. 825 

direct averment, that the prisoner attempted to escape : the allegation 
that the defendants assisted him to do so was deemed sufficient.] At 
least, where the indictment professes to show how the party attempted, 
a venue should be given. Aiding does not necessarily imply being 
present; McDaniel's Case, Fost. G. L. 121. Further, it is not shown 
that the gaol in question is a gaol within stat. 4 6. 4, c. 64, except by 
averring that it is so, which is a conclusion of law. Nor is it shown to 
be the gaol mentioned in stat. 5 ft 6 Vict. c. 110, s. 2, which makes 
Co?entry gaol a gaol for the county. Again, the caption is framed as 
in the case of an ordinary adjourned session. But the adjournment to 
Warwick is under a special statutory power, and under specific direc- 
tions :(a) and it ought to appear expressly ♦that these were acted r^oo/j 
upon. [Lord Gampbbll, G. J. — That the sessions were holden '- 
at Coventry as soon as they conveniently could be after the sessions 
at Warwick were concluded?] And that the grand jury were sum- 
moned from the Coventry division. [Coleridgb, J. — Is not there a 
grand jury for each at the county sessions ? There are always two at 
the assizes. Lord Gampbbll, G. J. — We charge two grand juries here 
in term.] It should, appear by the caption, according to the fact, that 
the grand jury were properly summoned. Here they are stated to 
have been sworn, ftc, for *' the body of the said county." [Golbridob, 
J.— Both are so.] Again, the defendant here is indicted under a 
statute which expressly makes him an accessory; and the indictment 
10 charges him. There is no authority, under this statute, to try the 
accessory as such, before the principal. [Lord Gampbbll, G. J. — The 
statute makes the aiding party a principal felon. Colbripoe, J. — Gan 
a defendant take this objection after he has pleaded ? An accessory 
might always be tried without the principal, if he consented to it ; 
though the jury must be told, in such a case, that they cannot convict 

(a) SUt 5 A 6 Viet o. 110, "to annex the ooanty of the City of Coventry to Vfarwicksbire," 
lie, enacts : 

Sect 7. That, after 9th Korember, 1842, " the justioei of the county of Warwiek shall hold a 
qoarteriy session of the peaoe at Coventry, by adjournment from Warwick, for the city of Coven- 
try, and such other part of the county of Warwick as the justices from Warwickshire from time 
to time in general or quarter session assembled shall order; and as soon as the said sessions can 
be conveniently holden after the business of the sessions at Warwick shall have been concluded, 
and after the said ninth day of November, no separate Court of fiessions of the peace shall be 
holden for the City of Coventry/' 

Sect 9. " That the Judges of assise and nisi prius, and others named in Her Majesty's commis- 
sions of oyer and terminer and gaol delivery, shall hold their sittings at nisi prius, oyer and 
terminer, and gaol delivery, within the said city of Coventry, for the said city and for such 
other parts of the said county of Warwick as Her Majesty, with the advice of her Privy Council, 
from time to time shall order, and at Warwick for so much of the rest of the said county as shall 
*oot be incladed in any such order: and that the sherifT of the county of Warwick shnll give 
bis attendance upon the said Judges and comminsioners, and shall cause tojbe summoned to 
Vfarwick and Coventry such grand and petty jurors of the county of Warwick as shall be 
needed fi^r the ezecatinn of the said several commissions ; and that all proceedings and orders 
cecessary for the execution of the said several comratjmions at Warwick and Coventry respect- 
ively shall be of the same force as if the same had been had and taken under the several 
like eommiasions heretofore issued for the county of Warwick ;" 4e. 



826 HOLLOWAY v, THE QUEEN. T. T. 1851. 

unless satisfied that the offence has been committed.] The first three 
counts are bad because thej do not show that the prosecution was 
commenced within one year after the fact was committed, which is 
^007-1 required by stat. 16 G, 2, c. 81, *s. 4.(a) That Act is not 
^ affected by the repealing clause, sect. 1, of stat. 4 G. 4, c. 64, 
except as to «« any gaol or prison to which this Act shall extend ;" and 
the record does not properly show that the gaol in question is one of 
those. [Lord Campbell, C. J. — We all think the second count good, 
but will hear you if you have any further objection to that. Tou will con- 
sider whether it is of any service to you to question the others.] 
Lastly, stat. 11 & 12 Vict. c. 78, s. 5, does not help the prosecutors in 
this case. If the Court reverse the judgment, the only judgment thej 
can pronounce, or direct, is that the plaintiff in error go without day, 
there being one bad count in the indictment. The provision of the 
statute applies only where, upon the record, a judgment against the 
defendant is warranted, but a wrong sentence has been passed ; as of 
fourteen years' transportation instead of seven. [Colbridge, J. — May 
not this Court pronounce that the Court below ought to have passed 
sentence under the good count, and arrested judgment on the others?] 

Mellor^ contrel^ was stopped by the Court. 

Lord Campbell, C. J. — On the construction of stat. 11 k 12 Vict. 
c. 78, s. 5, 1 have no doubt that, if there should be one good count, and 
the rest bad, we should be bound either to give judgment on the good 
count, or remit the case to the Court below, for them to pass such 
judgment. It was indeed held in Rex v. Bourne, 7 A. & E. 58 (£. C. 
L. R. vol. 84), that the Court of error could not give judgment on a 
^Qrto-i y^^^i count, even where there was but one sentence *which could 
^ be passed. I, as Attorney General, conducted that case on the 
part of the Crown, and bowed to the decision of the Court, though I 
doubted its correctness, and my opinion was strengthened by the doubt 
of my brother Patteson, who will always be to me an oracle of the law. 
In that case, I should have directed further proceedings in error, but 
the prisoners had been discharged. It was always my opinion that, 
where the sentence was discretionary, the Court of error could not well 
pronounce the judgment, and the Court below should ; but that, if only 
one judgment could be given, the Court aboye might safely pass the 
sentence which ought to have been passed by the Court below. Now, 
however, it is expressly provided by the late Act, that, if judgment is 
reversed, the Court of error may either pronounce the proper judgm^^nt, 
or remit the record to the Court below, in order that they may do so. 
And, where the indictment has good and bad counts, so that the Court 
below oughf to have arrested judgment on some and sentenced on others, 
but they have sentenced on all, the Court of error is no longer under 

(a) ** For the farther punishment of penons who shall aid or assist prisoners to attempt 
io escape out of lawful custody." 



17 ADOLPHUS & ELLIS. N. 8. 828 

difficulty, but may itself arrest judgment on the bad counts, and sen- 
tence on the good. It is suggested that this takes place only where a 
sentence which has been pronounced is the wrong one ; but I think the 
rale applies where the judgment has been improper ; as where it pro- 
ceeds upon several counts and one is defective : and, if we find a good 
count in the present instance, I do not see any difficulty in our either 
sentencing upon it or remitting the record for that purpose to the Ses- 
sions. But I think Mr. Flood has not shown that any of the counts is 
bad. So far as I have gone through the indictment, every one seems 
*to be sufficient. The first count, it is said, does not show the r^noq 
means by which the escape was aided; but this was not neces- ^ 
sary. An indictment for obtaining by false pretences must set out the 
pretences, that the Court may see whether or not the ofience charged is 
brought within the statute. But, by stat. 4 6. 4, c. 64, s. 48, an offence 
is committed if the escape be aided « by any means whatever." Then, 
in the second count, the means are set forth, and I think with sufficient 
particularity and a sufficient venue. * It states that, before the commit- 
ting of the offence (that means, as I think, the offence by the now de- 
fendant), Thompson, being a prisoner in the said gaol, was meditating, 
&c., to effect his escape from the said goal, and, in order thereto, had 
procured a key to be made for his use, with intent to effect his escape 
by means of the said key, and had made overtures to the defendant, 
then and there being a turnkey in the said gaol, to induce him to aid 
the escape, and so, in manner aforesaid, was endeavouring to escape. 
Thus it appears that, when the offence was committed, Thompson was, 
then and there, within the prison, endeavouring to escape. Then it is 
stated that the defendant, then and there, and while Thompson was 
such prisoner, feloniously did procure and receive the said key, then 
and there being capable of opening divers locks in the said gaol, not 
innocently, but ««with intent thereby and by means thereof to enable 
the said Robin Thompson to escape from the said gaol." That shows 
distinctly what it is that the defendant has to answer, and that it is the 
aiding in an escape. It is true that the subsequent words, «< and so 
the jurors," &c., state only an inference of law; but it is an inference 
fairly and necessarily to be drawn from the premises stated. It r^ton/v 
*seems to me, therefore, .that this count is good. As to the want ^ 
of venue to the acts of Thompson, it must be remembered that this is 
not an indictment against an accessory at common law, but is under an 
enactment which makes the assisting a substantive felony. And this 
answers the objection of the principal not being tried with or before the 
party aiding ; besides which, the objection comes too lace, as my brother 
Coleridge has pointed out. As to the caption : the case is merely that 
the sessions for the county are held in different parts of it, and a grand 
and petty jury come from each, to try for the body of the county. The 
judgment must be affirmed. 
VOL. XVII.— 28 T 



830 HOLLOWAY v. THE QUEEN. T. T. 1851. 

Patteson, J. — As to the caption, the effect of stat. 5 &; 6 Vict. o. 
110, sects. 7 and 9, is, snbstantially, that the assizes are held at Co- 
yentrj for a portion of the county : bat they are not the less sessions 
and assizes for the whole county, holden by adjonrnnient from War- 
wick. I cannot see any possible objection to the first count. As to 
the case put, of an indictment for obtaining by false pretences : where 
the offence consists in doing an act by means which are of a particular 
character, the Court ought to see by the indictment that they are of 
that character ; but, if it be made penal to do the act by any means, 
what is the use of setting them out ? I think the other counts are good 
also, for the reasons which have been already given. The averment 
that Thompson, at the time of the committing, &c., being a prisoner in 
the said gaol, did certain acts, is, I think, quite sufficient in this case. 
But the main question was, whether any one of the counts was good 

♦8811 "^^®^ ^^^ ^^^ * ^' *' ^' ^^' Whether stat. 16 G. 2, c. 31, be 
^ ♦repealed or not is, for the purpose of the present charge, im- 
material. Stat. 4 0. 4, c. 64, s. 43, is a substantive enactment ; and 
this case is within it. And, supposing nine different offences to be 
charged in this indictment, the punishment for every such offence is 
fourteen years* transportation, and that would be the judgment on 
every count. 

C0.LERIDGB, J. — I think the second count is good. The procuring a 
key, the overtures to the turnkey, and the other acts there alleged as 
inducement, were all conducive to the end of making an escape, dand 
attempts towards that end : there nas a design to escape, evidenced by 
overt acts. And then it is averred that th^ defendant received the key 
from Thompson, with intent, by means thereof, to enable him to escape. 
That, after the overtures recited, is a clear act of assisting the prisoner 
in an attempt to escape. 
Eblb, J., concurred. 

Judgment as follows : « That the judgment given against the 
said Henry Holloway is good and sufficient in law. It is there- 
upon ordered that the said judgment be affirmed." 



17 ADOLPHUS t ELLIS. N. 8. 882 



♦The QUEEN v. BASSET and HOLLAND. June 11. [*382 

Tb$ ADcieDt parish of SL OUei in the Field* was divided (under Acts of Anne and Q. 1 and G. 
2 for the bailding, Ac, of new oburches) into two parishes, 8t Oilea in the Field and St 
Qeorge Bloomsbary, which were made separate and dintinct for all purposes except as to 
church, highway, and poor rates, and separate Testrymen were appointed for the new parish. 
By itoU II O. 4 A 1 W. 4, e. x., For regulating the affairs of the joint parishes of SL Giles 
and St Ooorge, and of the sepsrate psrishes of St Giles and St George, the vestry of eaeh 
parish was to be eomposed of forty-two persons (besides the rector and churchwardens), 
elet'ted by the restrymen duly qualified; each restry was to* appoint its own church wardeoa 
and auditors and make its own church rates, and to manage some other aifairs of the separate 
parish ; and the vestrymen of the two parishes were to be tbe joint vestry of the parishes, and 
to appoint overseers and directors and other officers to manage the relief of the poor of the 
ioinc pariah, to make its poor rates, and to ezereise other powers relative to tbe poor and con- 
cerning tbe parishes jointly. Questions before the joint vestry were to be decided by % 
majority of the vestrymen present 
Held that the parishioners of one of the parishes could not separately adopt the provisions of 
Sir J. Hobbouse's Act, 1 A 2 W. 3, o. 60, for tbe election of their own vestry. ^ 

Indictment, found at the Central Criminal Court, and removed into 
this Court by certiorari. 

The first count stated : That, after the passing and coming into ope- 
ration of a certain Act of parliament made, &c. (1 & 2 W. 4, c. 60,(a) 
(«For the better regulation of vestries, and for the appointment of 
auditors of accounts, in certain parishes of England and Wales'"), cer- 
tain of the rate-payers of a certain parish in Engltfnd, that is to say of 
the parish of St. Giles in the Fields in the county of Middlesex, and 
within the jurisdiction of the Central Criminal Court,(i) desired that 
the^aid parish should come *under the operation of the said Act : r^tnoo 
And that a certain number of the ftte-payers of the said parish, *- 
amounting at least to fifty parishioners of the said parish, that is to 
say, to 146 parishioners of the said parish, whose names are to the said 
requisition hereinafter in this count set forth affixed, did, on a certain 
day between the 1st day of December, a. d. 1849, and 1st March, a. d. 
1850, viz. on the 28th day of February, A. D. 1850, iti pursuance and 
in conformity with the provisions of the said Act, deliver a requisition, 
by them signed and describing their places of residence, to two of the 
churchwardens of the said parish then serving for the said parish, to 
wit, to James Basset, late of the parish aforesaid in the county afore» 
said, labourer, and Henry Charles Holland, late of the parish aforesaid 
in the county aforesaid, labourer, then being, and as, the churchwardens 
serving for the said parish, requiring of them as such churchwardens 
to ascertain, according to the manner in the said statute, mentioned, 
whether or not a majority of the rate-payers of the said parish did wish 
and require that the said Act and the provisions thereof should be 
adopted therein ; which said requisition was and is in the words and 
figures following, viz. «(To the churchwardens of the parish of St. 

(a) Sir Jf Hobbon^p's Aet 

(6> Thia averment was made where neoessary in subieqaent parti of the record, but will not 
be repeated in this abstraot 



833 REGINA v. BASSET. T. T. 1851. 

Giles in the Fields in the county of Middlesex :. We whose names are 
hereunto subscribed, being rate-payers resident in the said parish and 
respectively rated or assessed to the relief of the poor thereof, do 
hereby require you the said churchwardens to ascertain and determine 
the adoption or non-adoption of an Act of the second year," &c., 
"intituled <An Act'" A;o. (1 A; 2 W. 4, c. 60). "Dated this 28th 
day of February, 1850/' (Then followed the names and addresses 
*^U1 *^^^^^^'^^^^ ^0 ^b® requisition.) Nevertheless the said J. Basset 

-' and H. G. Holland, so being such churchwardens as aforesaid, 
not regarding their duty in that behalf, but contriving and intending to 
tender the said requisition of no effect, although they received the said 
requisition on the day on which it was so delivered as aforesaid, at the 
parish, &c., unlawfully did refuse and neglect to affix or cause to be 
Viffixed, on the first Sunday in the month of March next after the receipt 
of the said requisition, viz. on the 8d day of March last past, a notice 
to the principal doors of every church or chapel within the said parish, 
specifying some day not earlier than 10 days and not later than 21 days 
after such Sunday, and at what place or places within the said parish 
the rate-payers should be required to signify their votes for or against 
the adoption of the said Act, or any notice whatsoever pursuant to the 
said Act ; in contempt, &;c., to the evil example, &c., against the form 
of the statute, &c., and against the peace, &;c. 

2d 'count. And the jurors, &c. : That, after the passing, &c. (of stat. 
1 & 2 W. 4, c. 60), certain of the rate-payers of a certain parish.in 
England, viz., the parish of St. Oilps, &c. (as before), that is to say, 
certain persons who had respectively been rated to the relief of the 
poor for the whole year immediately preceding their acting as sueh rate- 
payers as hereinafter mentioned, and who had respectively paid all the 
parochial rates, taxes, and assessments due from them at the time of so 
acting, except as in the said statute is excepted, desired, &;c. (as before). 
And that a certain number, &c. (as before), whose names and residences 
are set forth in the requisition hereinafter in this count mentioned, 
^„„ -, did, on a certain day, &c. ; as in the first count to the end, *only 

■* adding, after the words " every church and chapel within the 
s'aid parish," the words " that is to say, to the principal doors of all 
places of religious worship within the said parish according to the forms 
of the established church." 

8d count That the said J. Basset and the said H. 0. Holland here- 
tofore, to wit, on, &c. (28th February, 1850), and for a long time there- 
tofore, were churchwardens of the parish of St. Giles, &;c., and were 
on the day and year last aforesaid respectively serving the office of 
churchwardens of and for the parish aforesaid; and that certain, 
to wit, 500, of the rate-payers of the parish aforesaid, on, &c., at, 
&c., did desire that the said parish should come under the operation 
of a certain Act, &c. (1 & 2 W. 4. c. 60) : And that afterwards, to 



[♦336 



17 ADOLPHUS & ELLIS. N. S. 335 

wit, on, &c., at, &c., « certain number, &c., viz., 146 parishioners 
of the parish aforesaid, did, on a certain day between, &c., to wit, on, 
ic, deliver a requisition, by them signed and describing their places 
of residence, to each of them the said J. B. and H. G. H. as such 
charchwardens then serving for the said parish as aforesaid, and requiring 
of them the said J. B. and H. G. H., such churchwardens as aforesaid, 
to ascertain, &c. (as in the first count): which said requisition was then 
and there duly received by the said J. B. and H. C. H. and ei^ch of 
them as such churchwardens as aforesaid : That the first Sunday in the 
month of March next after the receipt of such requisition was the 3d 
day of March, A. D., 1850; and that it became and was the duty of 
them the said J. B. and H. G. H. and each of them, as such church- 
wardens as aforesaid, on the said 8d day of March, A. D.^ 1850, at the 
parish aforesaid, &c., to affix or cause to be affixed a notice to the prin- 
cipal doors of every *church and chapel within the said parish, 
specifying some day not earlier than ten days and not later than 
twenty-one days after such 8d day of March, and at what place or places 
within the said parish the rate-payers were required to signify their 
votes for or against the adoption of the said Act : Nevertheless the said 
J. B. and H. G. H. and each of them, so being such churchwardens as 
aforesaid, not regarding, &c., but contriving, &o. (^s before, to «of no 
effect"), unlawfully, wilfully, and contemptuously did refuse and neglect 
on the said 8d day, &c., at the parish, &c., to affix or cause to be affixed 
a natice to the principal doors, &c., specifying, &c. (as above), or any 
notice whatsoever directed to be given by the said Act in such behalf; 
contrary to the duty of thetjn the said J. B. and H. G. H. in that 
behalf, to the great damage of the said parish and the parishioners 
thereof, in contempt, &c. (as before). 

The defendants pleaded Not Guilty. On the trial, before Lord 
Campbell, C. J., at the sittings in Middlesex after Trinity Term, 1850, 
a special verdidt was found, as follows. 

The jurors, &c., say : That the parish of St. Giles in the Fields in 
the county of Middlesex was an ancient parish : That the Gommissioners 
acting under the authority of letters patent granted by King George 1, 
and by King George 2, and issued under the powers of the several Acts 
of Parliament passed for the building of new churches in and about the 
cities of London and Westminster and the suburbs thereof,(a) did, 
according to the directions of the said Acts, set out, appoint, and 
^declare a certain portion of the said ancient parish of St. Giles r^inni^ 
in the Fields to be a new, separate, and distinct parish to all ^ 
intents and parposes whatsoever except as teaching church rates,, the 
relief of the poor, and rates for the highways, by the name of the parish 
of St. G^rge Bloomsbury ; and did also appoint the rector, church- 
wardens, and thirty-six of the inhabitants of the said new parish to be 

(a) 8Matata.9ABB.o.S2. 10 Ann. o. II. 4 G. 1 e. 14. Sa.2.e.l9. 

t2 



837 REGINA v. BASSET. T. T. 1851. 

the first vestrymen of such parish ; since which period the said portion 
of the said ancient parish of St. Giles in the Fields, so set out, appointed, 
and declared to be a new and separate and distinct parish as aforesaid, 
has been known and distinguished by the name of the paris'h of St. 
George Bloomsbury, and the residae of the said ancient parish has been 
known and distinguished by the name of the parish of St. Giles in the 
Fields, and the affairs relating to the churches of the said separate 
parisf^es were managed by separate vestries of such parishes, the 
separate vestry of the said parish of St. George Bloomsbury being con- 
stituted according to the directions of the said Acts, until the passing 
of the Act, &c. (11 G. 4 & 1 W. 4, c. x., local and personal, public, 
after mentioned). And the jurors, &c., say that, up to and at the time 
of the passing of the said last-mentioned Act, no division had ever been 
made of the said ancient parish of St. Giles in the Fields as to the 
maintenance and relief of the poor, according to the powers of the sud 
church-building Acts or otherwise ; and the district of the same parish, 
so far as relates to the maintenance and relief of the poor, was com- 
monly known and distinguished by the name of the joint parishes of St. 
Giles in the Fields and St. George Bloomsbury in the county of Mid- 
dlesex, the same being coextensive with the said ancient parish of St. 
j^Qoo-i Giles in *the Fields in the county of Middlesex, and comprehend- 
^ ing the whole of the said separate parishes of St. Giles in the 
Fields and St. George Bloomsbury. And the jurors, &c., further say 
that the residue of the said ancient parish of St. Giles in the Fields, 
from which the said parish of St. George Bloomsbury was so separated 
as aforesaid, was and is the same parish of St. Giles in the Fields in 
the within indictment mentioned. And the jurors, &c., say that, before 
and at the time of the making and passing of the Act, &;c. (1 & 2 W. 4, 
c. 60), a certain local Act of Parliament made, A;c. (11 G. 4 ft 1 W. 4, • 
c. X.), intituled («An Act for the better regulation of the affairs of the 
joint parishes of St. Giles in the Fields and St. Georgft Bloomsbury in 
the county of Middlesex, and of the el^parate parishes of St. Giles in 
the Field, and St. George Bloomsbury in the same county,'* and which, 
from the time of the making and passing thereof, has been in force in 
the parishes therein mentioned, continued, and was, and from thenee 
hitherto hath been and still is, in force in the said parishes, the said 
separated parish of St. Giles in the Fields, therein mentioned, being the 
parish of St. Giles in the Fields in the within indictment mentioned : 
and the maintenance of the poor, and other affairs of the said parishes, 
have been from the time of the making, ftc, of the said last-mentioned 
Act hitherto, and now are, regulated and carried on by and in obedienee 
to the provisions of the said local Act ; and each of the said separated 
parishes has had, during all that time, its own particular churchwardens, 
appointed and acting under and in pursuance of the said looal Act. 
And the jurors, &c. : That, after the making, &c., of the said Act (1 



17 ADOLPHUS & ELLIS. N. S. 888 

A 2 W. 4, c. 60), on a certain day between ♦the let day of De- r^iooq 
ccmber, A. D. 1849, and Ist March, A. D. 1850, viz. on, kc. (28th I- 
February, 1850), the Bai4 local Act being then and there in force in the 
said parishes of St. Giles in the Fields and St, George Bloomsbury, and 
the maintenance of the poor and other affairs of the said parishes being 
then and there regnlated and carried on by and in obedience to the 
provisions of the said local Act as aforesaid, a certain number being 
more than 50, that is to say, 146 persons, being then and there all 
parishioners of the sAid separated parish of St. Giles in the Fields 
vithin mentioned, all of whom had been rated to the relief of the poor 
according to the provisions of the said local Act for the whole year 
then immediately preceding, and then and there paid all the parochial 
rates, taxes, and assessments dne from them respectively and which 
had 80 become due at any time not within six calendar months next 
immediately preceding, being the same persons within in that behalf 
mentioned, did deliver a certain reqoisition (being the same requisition 
within in that behalf mentioned), then and there signed by them and 
describing their respective places of residence as therein mentioned, to 
the said James Basset and Henry Charles Holland within mentioned, 
then and from thence nntil and at and after the Slst day of March, A. 
D. 1850, being and continuing the churchwardens of and serving for 
the said separated parish of St, Giles in the Fields within mentioned, 
requiring of them the said J. B. and H. G. H., as such churchwardens, 
to ascertain, according to the manner in the said within mentioned Act 
of King William 4 mentioned, whether or not a majority of the rate- 
payers of the said last-mentioned parish did wish and require that the 
said last-mentioned Act and the provisions ^thereof should be r^^q^n 
adopted in the said last-mentioned parish ;' and which said requi- *- 
sition was then and there in the words and figures within in that behalf 
set forth : and the said J. B. and H. G, H. then and there received 
the said requisition from the said ratepayers. And the jurors, &c., say 
that, at the time of the delivery of the said requisition as aforesaid, a 
certain number exceeding 50 of the parishioners of the said separated 
parish of St. George Bloomsbury, duly qualified in that behalf by 
rating and payment of rates, in like manner as aforesaid did deliver a 
similar requisition, sim ilarl y signed as aforesaid by the said last-men- 
tioned parishioners, to^^eparate churchwardens of the said separated 
parish of St. George l^Rmsbury, requiring them to ascertain in man- 
ner aforeeaid whether the provisions of the said last-mentioned Act 
should be adopted in the said last-mentioned parish. And the jurors, 
Ac., say that, before and at the times of the delivery of the said requi- 
sitions respectively, there was, and from thence hitherto has been, and 
still is, in each of the said separated parishes, a greater number than 
800 persons rated as householders, and who had paid the rates for the 
relief of the poor within the year preceding that in which the provisions 



340 REGINA v. BASSET. T. T. 1861. 

of the said last-mentioned Act were so desired to be put in execution 
within the said parishes respectively as aforesaid. And the jurors, Itc, 
say that the said J. B. and H. C. H. and the said churchwardens of 
the said separated parish of St. George Bloorosbury, acting under legil 
advice, refused to act upon the said requisitions so respectively delivered 
to them as aforesaid ; and the said J. B. and H. G. H. did not nor 
would, nor did nor would either of them, on the first Sunday in the 
*^4n ™^^^^ ®^ March next after the *receipt by them of the sud 
^ requisition as aforesaid, and which said €rst Sunday in March 
next after such receipt was and fell on the 3d day of March, a. d. 
1850, while the said J. B. and H. C. H. were and continued church- 
wardens of and serving for the said last-mentioned parish as aforesaid, 
or at any other time, affix or cause to be affixed to the principal or any 
doors or door of every or any church or chapel within the said last- 
mentioned parish, or give or cause to be given, in any manner whatso- 
ever, a notice specifying some day not earlier than ten or later than 
twenty-one days after the said last-mentioned Sunday, and at what 
place or places within the said, last-mentioned parish the ratepayers of 
the said last-mentioned parish were required to signify their votes for 
or against the adoption of the said within mentioned Act of W. 4, or 
any notice whatsoever for or towards the ascertaining in any manner 
whatsoever whether or not ar majority of the ratepayers of the said 
last-mentioned parish did wish and require that the said last-mentioned 
Act and the provisions thereof should be adopted in the said last-men- 
tioned parish. But the said J. B. and H. G. H. did, at all times after 
the receipt by them of the said requisition, wholly omit to give any 
such notice, or in any manner to comply with the said requisition. 
But whether or not upon the whole matter, &c. ; referring to the Court 
in the usual form to determine whether or not the defendants are 
Guilty or Not guilty of the offence charged. 

OrowdeVy for the Grown. — The question is, whether St. Giles's be or 
be not a parish to which Sir J. Hobhouse's Act is applicable. The 
special Act by which that parish is governed is stat. 11 G. 4 & 1 W. 4, 
*3421 ^' ^"* *"°^^^ which the parishes of St. Giles and St. George act 
-' as joint for the purpose of maintaining their poor, but are in 
other respects distinct : and they appoint their own vestries and officers 
respectively. The proceedings directed by ifjttk 1 & 2 W. 4, c. 60, sects. 
2, 3, 4, 5, are to take place, according to se<^2, (< when in any parish 
certain of the rate-payers thereof may desire that the said parish should 
come under the operation of this Act ;" and, in case of such desire 
being intimated by requisition from one-fifth, or a number not less than 
50, of the rate-payers, then, by sect. 3, the churchwardens «< of the said 
parish" shall give the rate-payers notice to signify their votes on a 
stated day for or against the adoption of the Act. St. Giles's is a 
parish within these clauses. [Colbridgb, J. — Do you say that St. 



17 ADOLPHUS & ELLIS. N. S. 842 

Gi]es*s alone is to come under Hobhouse's Act, and not St. George's ?] 
Not St. George's, unless they desire to do so. The proceedings as to 
each must* be separate.(a) By the interpretation clause, sect. 41, of 
sUt. 1 & 2 W. 4, c. 60, <( parish" is << deemed to include any liberty, 
precinct, township, hamlet, tithing, vill, extra-parochial place, or any 
place maintaining its own poor." St. Giles's, it is true, does not 
entirely maintain its own poor ; but it is a parish for other purposes, 
under Hobhouse's Act ; and sects. 2 and 8 include anything which may 
be called a *« parish." 

The earlier clauses of the local Act provide for the separate action 
of the two parishes ; sect. 9 forbids *the exercising any functions r^oMQ 
of a vestry for either parish, except as they are in this Act ^ 
authorized to exercise them separately or jointly.(6) The vestry of 
each parish consists, by this Act,(c) of forty-two persons, not including 
the rector and two churchwardens: sect. 12 provides that fourteen 
shall annually go out of office and be replaced by election, the mode of 
which is prescribed for each of the parishe8.((2) By *8ect. 15, no r^QMA 
person shall be entitled to attend or vote at any meeting of the ^ 
inhabitants of either parish for the electiomof vestrymen of such parish, 
unless he shall be rated towards the relief of the poor of the said 
parishes on an annual assessment of 25/. Sect. 17 enacts : <« That the 

(a) Tomliruou, for the defendants, stated that a question might hare been raised whether " SL 
Giles's/' for the present purpose, did not consist of the aggregate of the two parishes : but that 
the verdict had been framed with a view of excluding this question. [Lord Campbbll, G. J. 
Yott argue on the assumption that St. Giles's is only half a parish.] 

(6) Stat 11 G. 4, e. x., s. 9, local and personal, public, enacts: "That fVom and after the 
passing of this Act no public or open vestry shall be held within or for the said parish of St. 
Oiles in the Fields, or within or for the said parish of St. George Bloomsbury, nor shall any 
powers or authorities bo exercised by the inhabitants of the said parishes, separately or Jointly, 
of any portion of them, in vestry assembled, save and except as hereinafter provided ; and that 
all acts, powers, and authorities, which by the common law or statute law of this realhi may be 
done and exercised, or are required to be done and exercised, by the inhabitants of a parish in 
open vestry or otherwise assembled, or by the vestrymen of any parish, shall, from and after 
the passing of this Act, be done and exercised within the said parishes of St Giles in the Fields 
and St. George Bloomsbury, separately or Jointly, as the case may be or require, by the vestry- 
men of the said parishes by this Act declared and constituted, and hereafter to be elected, save 
and except as hereinafter provided." * 

(e) Sects. 7, 8. 

(d) Sect. 12 enacts : That, on Tuesday next before the 20th January, 1831, and on the same day 
in every subsequent year, " the inhabitants of the parish of St. Giles in the Fields, and the inhabi- 
tants of the parish of St. George Bloomsbury, respectively being duly qualified as hereinafter men- 
tioned, shall and may severally meet in the vestry room of .their parish, or in any other place 
within their parish, not being the chAch thereof, which the vestrymen of each such parish shaU 
appoint, and such inhabitants of the parish of St Giles in the Fields shall proceed to elect four- 
teen persona, being duly qualified householders residing within the same parish, to bo for three 
years, and until others shall be elected in their places, fourteen of the vestrymen of the parish* 
of St Gilea in the Fields, and snch inhabitants of the parish of St George Bloomsbury shall 
proceed to elect fourteen persons, being duly qualified householders residing within the same 
parish, to be for three years, and nntil others shall be elected in their places, fourteen of the 
vestrymen of the parish of St George Bloomsbury, in the room of the person who by lot or 
r»tatioa shall from time to time go oat of ofiice and cease to be vestrymen : Provided always, 
that every vestryman who shall be determined on to go out of oflioe, or who shall by rotation 
go out of office, shall be capable of being re-elected." 
VOL. XVII.— 29 



844 REGINA v. BASSET. T. T. 1851. 

Testrymen of each of the said parishes shall sererally meet in the vestry- 
room of their parish, .or at some other convenient place within sach 
parish," on a day, and between certain hours, which are spec^&ed, <<and 
shall then and there proceed in the execution of the powers vested in 
them by this Act ;" and provision is made in this and the next clause 
for subsequent meetings. By sect. 24, << the vestrymen of each of the 
said parishes may from time to time elect and appoint such and so many 
treasurers, collectors, officers, agents, and servants as they shall think pro- 
per, and shall take such security from the treasurers, collectors, or other 
receivers of money to be appointed or continued under this act, for the 
faithful execution of their respective offices, as such vestrymen shall 
think proper, which securities may be taken either in the name of their 
vestry clerk or in the names of any five or more of such vestrymen ;** 
they may suspend or remove such officers, &c., and elect others, and 
may order salaries to be paid them out of the money to be raised by 
such respective vestrymen under the powers of this Act. Sect 81(a) 
*U^'\ ^^P^^^^ ^^® vestrymen of each ^parish to elect churchwardens 
^ and sidesmen. And sect. 41 requires the vestry clerks, collec- 
tors, and all other officers, ohnrchwardens, vestrymen, and persons con- 
cerned in the accounts of the parishes respectively, to attend the audi- 
tors of such respective parish on summons by them or by the vestry clerk 
of such respective parish, and produce all books of account, &c. 

Then follow the clauses providing for the joint action of the two 
parishes. Sect. 42 enacts that «« from and after the passing of this 
Act the vestrymen for the time being of the parish of St. Giles in the 
Fields, together with the vestrymen for the time being of the parish of 
St. George Bloomsbury, shall be and they are hereby constituted and 
declared the vestrymen of the joint vestry of the parishes of St Giles 
in the Fields and St. George Bloomsbury ; anything in the said Acts 
passed," &c. (10 Ann. c. 11, and 8 G. 2, c. 19), << to the contrary not- 
withstanding." And, by sect. 48, << the vestrymen of the said joint 
vestry shall meet together in the vestry room of the parish of St. Giles 

(a) Sect 31 enacts : '* That it shall be lawful for the Testrymen of each of the said psirishea, 
and they are herebj respectively required to meet aDoually in Baster week, or within foiirieca 
days after, and sererally to elect two substantial householders within their parish (noi beiB^ 
restrymen) to be churchwardens of such parish, and also two substantial householdens within 
their parish (not being restrymen) to be sidesmen of such parish, to assist the church wardeas 
in the execution of their oflice, for the year then ensuing^^nd until others shall be appointed i& 
their room :" provision is then made in case of death or removal : *' and the respective ehwreh- 
wardens to be appoin^d by virtue of this Act shall, when duly sworn (in addition to the powers 
vested in and duties imposed upon them by this Act), have and be invested with all the powers 
and authorities, and shall ba liable to perform all the duties, which churchwardens appointed by 
the course of common or ecclesiastical law are invested with or are liable to, so far as the ■&»« 
are not inconsistent with or are not varied or altered by this Act; and the churchwardene of tb« 
laid respective parishes shall, after their appointment and during their continuance in aflrae, be 
and they are hereby declared to be vestrymen of the parish of which they shaU be elected 
•hurchwardens by virtue of such their offloe." 



17 ADOLPHUS k ELLIS. N. 8. S45 

io the Fields, *or at «#me other conTenient place irithiD the r-i^oAit 
parish of St. Giles in the Fields or of St. George Bloomsbury/' ^ 
on, Itc, between the hours, &o.y <« and shall then and there proceed in 
the execution of the powers vested in them by this Act ;*' prorision is 
then made for subsequent meetings ; no or^er to be made or proceeding 
taken (sect. 44) unless by concurrence of a majority of restrymen pre« 
sent, the whole number present not being less than thirteen.(a) [Lord 
CiMPBBLL, G. J. — Under Sir J. Hobhouse's Act, sect. 28, the number 
of restrymen, in parishes adopting the Act, may be from 12 to 120 
according to the population. Do you say that this democratic consti-' 
lotion may be adopted for the parish of St. Giles, while the former 
aristocratic constitution continues in St. George's ? One vestry might 
rery much outnumber the other.] That is as the population of St. 
Giles may be. [Lord Campbell, 0. J. — It might become a case .of 
ffwampiDg.] The local Act then gives to the joint vestries the power 
of nominating overseers and directors of the poor of the joint parishes, 
fects. 58, 62, and treasurers, bankers, chaplains of the workhouse, 
derks, governors, matrons, collectors of poor rate, assistant overseers, 
and beadles, sect. 51, and of ^making a joint poor-rate for the r^io^i^ 
parishes, sect. 86. By sect. 27 of stat. 1 & 2 W. 4, c. 60, the ^ 
vestry elected in any parish under this Act <« shall exercise the powers 
^ and privileges held by any vestry now existing in such parish." A 
proviso is added, <« that nothing in this Act shall be deemed" << to re- 
peal, alter, or invalidate any local Act for the government of any parish 
by vestries, or for the management of the poor by an^ board of direc*^ 
tors and guardians, or for the due provision for Divine worship within 
the pi^rish, and the maintenance of the clergy officiating therein, other- 
wise than is by this Act expressly enacted regarding the election of 
vestrymen and auditors of accounts." Sect. 78 of the local Act pro- 
vides «< that the several laws relating to the overseers of the poor, and 
for the relief, maintenance, and employment of the poor, shall continue 
in force within the said parishes of St. Giles in the Fields and St. George 
Bloomsbury, except where the same are altered or are inconsistent with 
this Act." And sect. 87 enacts : <« Thmt from and after the passing of 
this Act no rate for the relief of the poor shall be made or raised within 
the said parishes without the consent of the vestrymen of the said joint 
vestry, or by any other wajs or means than are directed by this Act ; 

(a) Seat 44 wmbU i " That all orders and proooedings of tho restrymen of the laid Jaioi 
▼Mtry la the ezooutioii of this Aet shall bo made and taken at a meeting or meetings to be heU 
ia funamnte hereof, and not otherwise (exeepi in eases herebgr otherwise partioalarly pre- 
Tided for) ; and no sneh order or prooeeding shall be made or taken onless the miO^^^tj of 
the Testiymeii present at the respective meetings shall eononr tlierein ; and all orders and pro- 
•sedinge whieh are hereby directed to be made or taken by or before the said Yestrymen, and aU 
the powers aad anthorities hereby vested in them generally, sha41 and m^ be made, taken, aad 
szereiMd bj the msjority of the vestrymen who shall be preoent at saeh meeting, the whole 
Bsmber of rerstrymen present at any sueh meeting not being 1 ess than thirteen (except Ia oasei 
where any other number is by tUa Aet named for any pevtfttt]«r purpote)." 



847 KEGINA v. BASSET. T. T. 1851. 

and all moneys arising by or from the rates ^ be made by virtae of 
this Act for the relief of the poor shall be and are hereby vested in the 
vestrymen of the joint vestry of the said parishes, for the joint use of 
the two parishes :*' the overplus after paying costs of collection, and 
taxes, costs, &;c., charged by law upon the poor rates, to be applied by 
the directors in paying for «< the relief, maintenance, and empIoymeDt 
of the poor of the said parishes." 

^OMQ-} Under the local Act, therefore, these are two parishes, *jointly 
^ maintaining their poor ; each providing for its own poor and that 
of the othef. Each, then, is a <« parish" within the broad sense given 
to that word by stat. 1 & 2 W. 4, c. 60, s. 41. [Coleridgb, J.— As 
yx>n contend, if the whole of St. George's parish were unwilling, thej 
might yet have this Act put upon them. Lord Campbell, G. J. — And 
be juled by the vestry elected under it. Coleridge, J. — Yet the prin- 
ciple of Hobhouse's Act is that the adoption of it shall be* voluntary. 
Lord Campbell, C. J. — In point of law could it be adopted for the 
joint parishes, if both were willing ?] It could. [Lord Campbell, C. 
J. — Then it can hardly apply to a half. Coleridge, J. — If both, by 
majorities of the rate-payer, concurred in adopting the Act, would it 
be a place <« maintaining its own poor" within stat. 1 & 2 W. 4, c. 60, 
for which such adoption would be available ?] It would seem that each 
parish, individually, ought to adopt it. The directions in sects. 2 and 
8, relative to the «< churchwardens of the said parish," are hardly con- 
sistent with the supposition that the two constitute one for the purpose 
of that Act. The whole question turns on the meaning of the word 
«< parish" in Hobhouse's Act : whether it must necessarily mean a place 
maintaining its own poor individually and entirely. Such a con8tra^ 
tion would excUide many parishes from the benefit of the Act. [Lord 
Campbell, C. J. — Incorporated parishes are very different from this, 
which is an ancient parish subdivided.] The argument that a dispro- 
portionate number of vestrymen might be elected from St. Giles's is not 
conclusive. [Lord Campbell, C. J. — It has weight only when we are 
considering the probable intention of the Act.] The intention was to 
♦S4Q1 8'^® * broad basis. [Lord Campbell, C. J. — With ♦consent of 
^ those concerned : that is, according to the will of a majority of 
rate-payers within the area. If the Act were introduced into both 
parishes as constituting one, each part woulc|^have the influence it ought 
under Hobhouse's Act : if it is adopted only by half, one half has not 
that influence, and is subject to the other.] The other may adopt the 
Act also. If the parishes could legally adopt the Act together, there 
would be no disadvantage ; this, however, does not seem to be an ad- 
missible construction. The whole was originally St, Giles's parish; 
but that does not seem material to the present question. [Lord Gamp- 
bell, C. J.— No.] 

TomltMonj contr&, was stopped by the Court. 



[*350 



17 ADOLPHUS & ELLIS. N. S. 349 

Lord Campbell, C. J. — Whether Sir John llobhouse's Act could ap- 
ply to the whole of that which was the ancient parish of St. Oiles in 
the Fields, we are not called upon to say : to the half it clearly cani^ot. 
I think this never was contemplated by the Legislature ; and it would 
be most unjust to force upon St. George's parish the necessity of act- 
ing with a body elected by St. Giles's under a totally different constitu- 
tion, which might nullify all their influence and annihilate their rights, 
and, as to the making of rates and for other purposes, subject them 
entirely to the tyranny of the new power. I think that, with regard 
to Hol)house's Act, the present parish of St. Giles is a parish and not 
a parish. It is one half of a parish ; and this half cannot force a new 
constitution upon the other. I have no hesitation in saying that oui^ 
judgment ought to be for the defendants. 

^CoLBRiDOB, J.(a) — I am of the same opinion. The Legisla- 
tare, in passing stat. 1 & 2 W. 4, c. 60, contemplated an entire 
body, and deemed it essential that the change to be effected by the Act 
should not take place unless assented by two-thirds of that body. Here 
the attempt is to bring under the operation of the Act a wMe body 
which has neither assented to nor been consulted upon it, and may be 
entirely opposed to it. • 

Erlb J. — This proceeding could be supported only on a supposition 
that the parishes of St. Giles and St. George, which are in effect one 
parish for the purpose of maintaining their poor, were co-operatiijg to 
obtain the benefit of Sir J. Hobhouse's Act. At present the rights of 
the two, as jointly maintaining their poor, are regulated by the local 
Act, 11 G. 4 & 1 W. 4, c. X. If the half of that which is to be oon- 
Bidered as one ,parish under the local Act could take the benefit of 
Hobhouse's Act alone, it would very materially affect the rights of the 
other half in their vestry, they remaining subject to the statute of 11 
6. 4. It is clear that the parishioners of St. Giles's hate no right to 
affect the parishioners of St. George in this manner against their will. 
The claim set up is in effect a claim by one half of a parish to take the 
benefit of Sir J. Hobhouse's Act without the consent of the other, and 
cannot be maintained. Judgment for the defendants. 

(a) PAtteaoa, J., left the Court when the oaee wm called on, being a nte-pajer of one of the 
ptriibea. 



•ROBERT BIDDULPH v. CHARLES MORTON CHAM- j.^^.. 
BERLAYNE. June 12. L "^^ 

Aetion for » libel. Pie* jaitifying, as tme, part of the libel, which eomprised MToral libellooi 
allegatioas. Replication Do I^Jaria. On the trial, the Jndge aiked the Jnry to find aeparatelj 
as to the truth of the Mveral allegations Jnetifled. The Jnry found that some of the allegationa 
were not true, and that othen, forming an important part of the libel, were tme. A general 
rerdiet was entered for the plaintiff. A judge made an order that the Maiter should not 
allow plaintiff the costs of tho witnesses called only to disprore that part of the plea which 
was found to be true. On a motion to rescind this order, 

u 



851 BIDDULPH v. CHAMBERLAYNB. T. T. 1851. 

Hel4, l»7 Lord Campb«ll| 0. J., 'Patteson and Coleridff«i Ja., that tha order wm impiopv, 

the ieeoe being indiriaible. 
Brie, J., dUseoUente. 

dRBAVBS, in the present term, obtained a mle Nisi to rescind an 
order of Patteson, J., made in this canse, that the Master on taxation 
disallow the costs of such witnesses for the plaintiff as were called onlj 
to disprove the existence of a nuisance. 

The action was for a libel,* contained in a letter published in a nevs- 
paper, stating as follows : That defendant had complained, a tweh^ 
month before, to the plaintiff that an open ditch and cesspools, on 
plaintiff's premises near Ledbury, were injurious to public health, and 
a nuisance; that plaintiff after fencing with defendant's questions 
refused to do anything ; that proceedings were taken before the magii- 
trates, under stat. 11 & 12 Vict. c. 123, to remove the nuisance, which 
were defeated by technical objections on the part of plaintiff; that the 
ditch was a nuisance which for many years had occasioned typhus fe?er 
in the neighbourhood ; that plaintiff had full notice of this, and that the 
nuisance #till continued unabated. The defendant pleaded (among other 
pleas) one which was so worded as to leave it ambiguous whether it was 
conteed to the part of the libel which imputed that defendant had 
maintained a nuisance, or was pleaded to the whole of the libel of which 
«oc9i ^^® substance is above set forth. It *averred the truth of each 
-^ of the facts above stated. Replication : De injuri&. 

On the trial, before Patteson, J., at the Croydon Spring Assizes, 
1851, the bulk of the evidence called on each side was as to the nature 
of the ditch in question, and the prevalence of typhus fever in its 
vicinity. The jury, in answer to questions put by the learned Judge, 
found that the ditch was a nuisance, but that other statements in the 
libel, the truth of which was averred in the plea, were not true. The 
learned Judge directed a verdict for the plaintiff on this issue, with 
leave to defendant to move to enter a verdict for him in case the Court 
should be of opinion that the plea, so far as material, was confined to 
that part of the libel proved to be true. Whately^ in Easter Term last, 
obtained a rule Nisi accordingly, which was discharged in that Term. 
Patteson, J., then made the order m question. 

Whately and Phipson now showed cause. — The plaintiff*, having bj 
the replication, De injuria, put the whole plea in issue, was, as this 
Court has determined in the present cause, entitled to the verdict, 
unless the defendant proved the truth of every material allegation in 
the libel to which it is pleaded : (a) but, though the plea is for the purpose 
of the verdict entire, it is not indivisible for every purpose. A plaintiff 
always has the power to divide such a plea as this, by admitting such 
of the allegations as are true and replying De injurifi absque residao 
causae to the rest ; if he does not choose to adopt this course, he should 

(a) See Regtna v. Newmao, 1 B. A B. 558 (EL C. L. B. toL 72). 



17 ADOLPHUS & ELLIS. N. S. 858 

not be allowed the costs of those allegations which he has unnecessarily 

tnd untruly put in issue. [Lord *Campbell, C. J. — It would r^eoco 

be equitable in the present case to deprive the plaintiff of those ^ 

costa. The sole question is, Has the Court a discretionary power to do 

so, the issue not being divisible on the record ?] For the purpose of 

costs, each distinct allegation may be viewed as a distinct issue. No 

witnesses ought to be allowed unless material : how can it be said that 

witnesses called only to prove a fact which was disproved can be 

material? Prudhomme v. Eraser, 2 A. & E. 645 (E. C. L. R. vol. 29), 

goes much farther than is required. There the libel was considered so 

far divisible that the defendant was allowed the costs of that part not 

proved by the plaintiff: here it is only asked that the plaintiff may not 

have those costs. That case also shows that the fact of the verdict being 

entered generally is not conclusive as to costs. So also does Welby v. 

Brown, 1 Exch. TTO.f The jury in this case might have returned a 

special verdict, finding some averments in the plea one way and some 

the other. Every material allegation is in substance, though not 

formally, a separate issue. 

QreaveSy contrd*. — The jury are sworn to try the issue joined, not to 

try every separate fact ; but, if the rules as to costs, now contended for, 

is to apply, it becomes a matter of right to have the verdict of the jury 

on each separate averment, as much as where there are separate issues. 

[Lord Campbell, C. J. — The rule might be, that, where the Judge in 

hid discretion thought fit to ask the jury tq find the facts separately, 

the costs should follow their finding, without laying it down. either that 

the party should have a right to require that *the opinion of the r^ioci 

jury should' be taken separately, or that, where the facts were ^ 

not founl separately, the Master on taxation should enter on the 

inquiry.] No such rule has eyer been laid down ; and it would be very 

inconvenient if such a rule did exist. The Judge at Nisi Prius often 

finds it convenient to ask the jury specific questions in order to raise a 

point of law for the Court ; and it would be hard if his doing so should 

affect the costs. Besides, the Court have not jurisdiction to deprive 

the plaintiff of costs on a verdict on an indivisible issue ; if the issue be 

such that the other side has, or might have, a judgment, the case is 

different. Thus, where the issue is divisible and the defendant may 

have a judgment as to part, as. in Williams v. Great Western Railway 

Company, 8 M. ft W. 856,t or where from the actual form of pleadings 

he has a judgment, as in Daniel v. Barry, 4 Q. B. 59 (E. C. L. R. voL 

45), the costs are disallowed ; but not otherwise ; Anderson v. Chapman, 

5 M. k W. 488.t 

Lord Campbell, C. J. — I am of opinion that the rule must be made 
absolute. 

The question raised is whether, with respect to the allowance of 
costSy an issue can be considered distributive, which cannot be divided 



854 BIDDULPH v. CHAMBERLAYNB. T. T. 1851. 

on the record because it is taken on one entire plea. I feel great diffi 
culty in seeing how it can be done. In all the cases cited the. issue 
might have been divided on the record, and a finding might have been 
entered on one part of it for the plaintiff, and on the other for the 
i^ofitrt defendant ; but, where, as in the present case, the ^plaintiff is 
-' entitled to the verdict on the entire issue, it is diflScuIt to see 
how, for the purpose of taxation of costs, we can distinguish between 
the several allegations in the one entire plea. That has never been 
done hitherto ; and it would often have been done, but for the incon- 
venience of the course. It is not proposed in this case that the Master 
shall on taxation always inquire whether the different allegations were 
proved. The defendant's counsel ask that the rule should be confined 
to cases in which the Judge has put specific questions to the jury, and 
they have found that certain allegations have not been proved. But, 
if that were the rule, it would be a matter of accident whether tbe 
plaintiff got these costs or not, unless it were to be established that the 
defendant had a right to require the Judge to put the allegations to the 
jury separately ; which would, I think, be most inconvenient. In the 
particular case justice would be done by adhering to my brother Patt^ 
son's order: but I think it would be an excess of our jurisdiction and 
would lead to much inconvenience in other cases. 

Patteson, J. — This question could not have arisen unless I had pot 
specific questions to the jury as to the different allegations in the plea; 
for, if I had left the issue generally to the jury and they had found a 
general verdict, it could not have been known what allegations they 
thought disproved. Now the questions were put by me quite alio 
, intuitu ; and I think the fact that such questions were put ought not 
to affect the costs. In this case there is one single issue, indivisible so 
^Q-^-| far as regards the verdict. It is contended *that the issue maj 
^ nevertheless be divisible as to costs. It is quite clear that it is 
not divisible for the purpose of giving the costs of those allegations 
which were disproved to the defendant ; but it is urged that, though 
not divisible so as to give the defendant those costs, it may be so divi- 
sible as to deprive the plaintiff of them. I think the precise question 
has never before been raised, as the attempt has always been to give 
costs, not merely to deprive the other side of them ; but I am of opi- 
nion that we ought not to establish the rule as asked for now. I made 
the order with a view to justice ; I am now convinced that, to do so, I 
rather wrested the law, and was wrong ; and that the present rule most 
be absolute. 

Coleridge, J. — The safe course is to limit the rule of Hil. 2, W. 4, 
I. 74,(a) to issues which may be found on the record. That I think is 
the meaning of the general rule made by all the Courts for the purpose 
of rendering the practice uniform ; and, if it is to be extended in the 

(a) 3 B. A Ad. 3S6 (E. C. L. R. voL 23). 



17 ADOLPHUS & ELLIS. N. S. 856 

■ ■ ■ ■ . . 

manner now sought, it ought to be done by a general rule of all the 
Conrtfl. That alone I consider a sufficient reason for setting aside this 
order. But, further, I cannot but think, that if, to advance what we sup- 
posed to be the justice of this case, we were to extend the rule as asked, 
we should lay down a most inconvenient rule of practice. If an issue, 
indivisible for the purpose of the verdict, may be divided for the pur- 
pose of costs, I do not know where to stop ; the party would have at 
lesst an equitable right in all cases to ask the Judge to put the allega- 
tioflg separately ; which *would be very inconvenient. But that is r^ofin 
not all : it would follow that the Master must as it were re-try ^ 
the cause, so as to ascertain the materiality of each witness as to each 
allegation. I think it much better to adhere to the rule than wrest 
it for the supposed justice of the case. I say supposed justice; for 
it mast be remembered we have not complete knowledge of all the cir- 
cnznstances. 

Erle, J. — My opinion is not material: but I should have thought 

the principle of Prudhomme v. Fraser, 2 A. & E. '645 (E. G. L. R. 

vol. 29), was a precedent for this order. The libel in the present case 

contained several libellous allegations, and was in effect several libels. 

The defendant pleads a plea justifying both the allegation that there 

was a nuisance, and those that the plaintiff had otherwise misbehaved 

himself. The plaintiff puts in issue the whole plea; which I think 

was, in substance, one plea to. two causes of action. The Judge had a 

right, if he thought proper, to ask the jury what their opinion was as 

to each allegation separately ; and the jury had a right, if they pleased, 

to return a special verdict, finding as to each allegation separately ; 

and, though perhaps in strictness they ought not to be directed to 

consider how much of the libellous matter was true when estimating 

•damages, I suppose there is no doubt the jury would do so in fact. 

Then, the issue being divisible for all these purposes, I should say that, 

according to the principle of Prudhomme v. Fraser, the issue might be 

considered divisible for the purpose of taxation ; and that we might 



refuse to allow the plaintiff *the costs of attempting to negative 



[*368 



that part of the plea which was proved.(a) 

Bule absolute, (i) 

(a) See bUL 15 A 16 Vict e. 76, ••. 77, 81, 223. No general rule apportioning the oosti of 
iflfaee fafee jet been made under Met 223 ; so that it ie apprehended that, where there is a general 
dcDul of » pleading, the costs of all the aUegations, whether proved or disproTed, most foQow 
the finding, as before the statute, aeeording to the principal case. 

(6) Reported by C. Blackburn, Esq. 



VOL. XVII. — 80 u 2 



858 CHELSEA WATERWORKS CO. v. BOWLET. T. T. 1861. 



The Governor and Company of CHELSEA Waterworks v. WILLIAM 
BOWLEY. June 18. 

A waterworks Oompan j, ineorporated in parsaanee of a local Aet, wer« empowered to Uy pipci 
in the streets, roads, Ae., and did lay pipes aoeordinglj. Tbe Company were assessed is the 
land tax, as holders of land in a district within which they had pipes laid down, bat in whiek 
they had no other property ; and their goods were distrained for land tax. 
In an action of trespass for so taking the goods of the Company : Pica : Not Gnilty, by statots* 
Held : That they were not liable to be assessed to the land tax for the land oeenpied \iy thtir 
pipes. 

Trespass for seizing goods. Plea : Not Guilty, by statate. Issm 
thereon. 

By order of a Judge, and by consent of the parties, a case was stated 
for the opinion of this Court. 

The substance of the case was, that the Company were incorporated 
for the purpose of erecting waterworks by a charter of incorporation 
granted to them in 9 6. 1, in pursuance of stat. 8 6. 1, c. 26 ;(a) and 
that their powers "were enlarged by further letters patent granted in 7 
G. 2, and by stat. 49 G. 3, c. clvii.(6) 

*5lf;Ql ^^bcy '^^^^ empowered, among other things, to purchase and 
^ hold lands, not exceeding in value lOOOZ. ; and also, by sects. 8 
& 9 of Stat. 8 G. 1, c. 26, to lay pipes from their waterworks throngh 
the streets, roads, &c., in and about Westminster. 

In pursuance of their powers, they did purchase lands, lying entirely 
within, the parish of St. George Hanover Square, on which their water- 
works and reservoirs were erected ; and from thence laid down pipes 
through the streets, &c., in the adjoining parishes of St. Margaret and 
St. John Westminster. The Company had no other interest in the*8oil 
in those last-mentioned parishes than arose from their having the pipes 
thus laid down. They w%re in 1847, for the first time, assessed to the* 
land tax by the Commissioners of the Division consisting of St. Mar- 
garet and St. John Westminster ; the property in respect of which they 
were so assessed was described in the assessment as « Land occupied 
by the mains and pipes and other apparatus of the said Governor and 
Company for the conveyance and supply of water." The defendant, by 
the authority of the Commissioners, distrained for the rate. The qnes- 
tion submitted tp the Court was, Whether the Company are liable to be 
assessed towards the land tax within the said Division of St. Margaret 
and St. John under the circumstances above set forth. 

The case was argued in this term (June 6tli) (c) by Crowder for the 
plaintiiT and Willes for the defendant. The arguments on both sides 
sufficiently appear in the judgment. Our. adv. vulL 

(a) ** For bet^r supplying the City aod Libertiei of Westmiof ter, and parte acQaoeot, with 
water." See, as to the powers of the Compaoy, Rex v. The Cheleea Waterworks Conopanj, 5 B. A 
Ad. 156 (B. C. L. R. vol. 27). 

(6) Local and personal, pablic. " For amending an Act," Ac. (8 G. 1, c. 26), *' and for enlirt* 
lag the powers thereof." 

(e) Before Lord Campbell, C. J., Patteaon, Coleridge, and Brie, Ji. 



17 ADOLPHUS & ELLIS. N. S. 859 

Lord Campbell, C. J., now deliyered judgment. 
We are of opinion that The Chelsea Waterworks *Company rutoisA 
are not liable to be assessed towards the payment of land tax '- 
within the division of St. Margaret and St. John, Westminster. We 
shoald have had no difficulty in arriving at this conclusion, had it not 
been for the decisions holding this and similar companies liable to be 
assessed to the poor's rate under stat. 48 Elia. c. 2, in respect of the 
same subject-matter. 

The validity of the present assessment is rested on the 4th section 
of Stat. 88 0. 8, c. 5 : whereby it is enacted(a) that all bodies corporate 
having or holding any lands or hereditaments shall be charged to the 
land tax. The question is whether, in respect of what the Company 
have done, and now enjoy, under the powers conferred upon them by 
sects. 8 and 9 of stat. 8 G. 1, o. 26, they can be said to have or to hold 
any land or hereditament. Although it has been considered for more 
than a century th%t they do not, they could not resist the assessment 
if they ever were liable to be assessed to the land tax. But we think 
that the parishes through which their pipes pass have acted properly 
in omitting to assess them. The right in question, where exercised, 
appears to us to be in the nature of an easement, and neither land nor 
hereditament. The right is to convey water through the land of 
another : and, whether the water is to be conveyed upon the surface of 
the ground, or in covered drains, or in pipes, appears to us for this pur- 
pose to be immaterial. The mere power to lay the pipes in land can- 
not be considered land or hereditament ; nor *do we think that r^tn/)^ 
the pipes when laid can be so considered, within the meaning of '- 
the* Land tax Acts. These Acts, in speaking of lands and heredita- 
ments, contemplate property to be let by a landlord to a tenant, and 
property the land tax of which might be redeemed. The whole scope 
of the Acts is to throw the tax as a charge upon the landlord ; and the 
tenant, having paid the tax, is authorized by section 17 of stat. 88 0. 
8, c. 5, to deduct it out of the rent. The Company are not the owners 
of the land where the pipes lie ; nor are they the tenants of this land ; 
and there is no rent from which they can deduct the amount of the 
assessment when they have paid it. 

Again, the provisions of stat. 42 G. 8, c. 116, for the redemption of 
the land tax, are wholly inapplicable to such a subject, although it was 
clearly intended that thQ land tax on all property which could be con- 
sidered land was to be redeemable. The moment the Company take 
up their pipes which had been laid under the streets of any particular 
parish, all pretence for saying that they have or hold land in the parish 

(a) Sect. 4 enaeto: "Thftt all and erery manon, meiraagei, landi, and tenrtnentB/' Ac, "an4 
all hereditamenti, of what nature or kind loeirer/' ritoatef Ao., '' and being within the reipectlT^ 
eitief, Ae., Aforetaid" (of which Wettmintter is one), " and all and erery penon/' Ae,, ** bodies 
politic and corporate/' Ac, '* having or holding any inch manors/' Ac, in respect thereof shaU 
be charged, ftc 



861 CHELSEA WATERWORKS CO. t^. BOWLEY. T. T. 1851. 

would be gone : bat, after the pipes are removed, all the land in the 
parish would remain, and it would be had and held as before. • 

The Bath, Brighton, and Chelsea Waterworks case8,(a) touching the 
assessment of companies to the relief of the poor in respect of pipes 
for the conyeyanoe of water or gas, as << occupiers of land," have been 
very properly much relied upon ; for they appear to be closely in point. 
* We by no means feel ourselves at liberty to overrule these cases, or 
^o/joT ^^^^ ^^ express a ♦doubt whether they were rightly decided. 
■J But (Mand," like the word ^Mnhabitant," which likewise occurs 
in Stat. 43 Eliz. c. 2, has various meanings ; and it may, in that statute 
passed to throw a charge upon the occupieTy mean the ground on which 
a chattel is deposited in the exercise of an easement, although in other 
acts of parliament it means a legal interest in the soil. This is the 
meaning which we think it bears in the Land tax Acts : and, if so, the 
Company had not, nor held, any land or hereditament which rendered I 

them liable to be assessed to the land tax: and they are entitled to I 

our judgment. Judgment for plaintiirs.(i) 

(a) Rex V. The Corporation of Bath, 14 Bast, 800. Rax v. Brighton Qas Light Company, 5 

B. A C. 4A6 (B. C. L. R. yoL 9). Rex v. The Chelata Waterworks Companj, 5 B. A Ad. 156 (BL 

C. L. R. ToL 27). 
(6) Reported bj C. Blaokbnm, Bsq. 



The QUEEN v. The AMBERGATE, NOTTINGHAM and BOSTON, 
and EASTERN Junction Railway Company. June 13. 

A motion for mandamni to a Railwaj Company to oarry oat their line, which it is alleged th^ 
are leaving inoomplete by laohes, may by grounded on a demand made by a shareholder in 
the Company itself. •• 

A RIJLB nisi was obtained last term for a mandamus calling upon the 
aboTCrnamed Company, established under stat. 9 & 10 Vict. c. cIt., 
local and personal, public, <^for making a railway from or near the 
Ambergate Station of the Midland Railway, through Nottingham, to 
Spalding and Boston, with branches therefrom, and for enabling the 
Company to purchase the Nottingham and Grantham canals," and stat. 
10 & 11 Vict. c. lzxviii.,(a) local and personal, public, to complete the 
line of their railway from Ambergate to Grantham. The rule was 
*8631 *ff'*^*®^ ** *^® instance of the proprietors of the Granthana 
^ Canal NaTigation, established under stat. 83 G. 3, c. 94, and 3T 
G. 3, c. 30. By the affidavits on which the motion was grounded, it 
appeared that the railway had been completed and opened from Netting-- 
ham to Grantham, and, in the opposite direction (towards Ambergate^ 
from Nottingham to Bulwell ; but that the residue of the line, from 

(a) Bnabling the Company to alter their UnOi and make a branoh to Nottingham. 



17 ADOLPHUS & ELLIS. N. S. 



BuIWell to the Ambergate station, had not been commenced : that the 
Railway Company, as was believed, did not intend completing it ; and 
that a committee of shareholders and directors appointed to report 
npon the undertaking had (on May 5th, 1848) given their opinion against 
carrying the line farther : That the opening of the portions of railway 
already completed had diminished the tolls and profits of the Canal 
Company, and was likely to be a permanent injury to their property: 
That they had always been ready and willing to convey their Naviga- 
tion, lands, and works to the Railway Company, as, by the first-men- 
tioned Act, they were required to do : And that the construction of the 
remaining portion of the railway would be of great public benefit. 
To prove a demand on the Railway Company, affidavit was made of 
their having been served, on March 8th, 1851, with the following notice, 
dated the same day, and signed by Henry Thompson, stating himself 
therein to be a shareholder ; but who was not one of those who made 
the above-mentioned report. The service was by his clerk. 

** I, Henry Thompson, of Grantham, in the county of Lincoln, Solicitor, a pro- 
prietor of fi?e shares in The Ambergate, Nottingham and Boston and Eastern Juno- 
tion Railway Company, hereby give you notice that, unless proper proceedings shall, 
on or before the 25th day of March, instant, be taken to make and complete the 
whole main line of railway and branches authorized to be made by the said Com- 
pany pursuant to the provisions of *the Ambergate," te,, "Railway Act, rntooA 
1846. and of the Ambergate." Ac, " Railway Amendment Act, 1847, 1 shall L 
institute such proceedings as I may be advised at law and in equity for the purpose 
of compelling the "said Company to complete such main line and branches, and to 
restrain the said Company and the directors thereof from applying any of the profits 
or other funds of the said Company to any other purpose than for the purpose of 
such completion, and from doing any act which may prevent, or from neglecting to do 
anytiiing which may be necessary for, the completion of such main line and branches. 
Dated," Ac. 

There was also an affidavit showing that, on May 12th, a survey and 
inqniries had been made along the formerly proposed line from Bulwell 
to the Ambergate Station, and that no preparation appeared to have 
been made for constructing the railway in that direction. 

Willes now showed cause. — [The Court inquired of Sir F. Kelly^ 
who supported the rule, for whom he appeared. Sir F. Kelly, — For 
Thompson and for the Grantham Canal Company.] There has been 
no sufficient demand and refusal. The Canal Company themselves have 
made no demand ; and, supposing that they could avail themselves of 
Thompson's demand, he himself could not regularly make it ; for he 
has no authority unless as a shareholder in the Railway Company ; and 
(assuming that the notice, which is the only evidence on the subject, 
sufficiently proves him to be a shareholder) the reception of the report 
made on May 5th shows a laches which disables any member of the 
Company from making this demand. [Lord Campbell, C. J. — The 
demand by Thompson as a shareholder appears sufficiently for the pre- 
sent purpose.] There is no sufficient evidence of a refusal. [Erlb, J. 



864 REGINA v. AMBERGATE, Ac , RAILWAY CO. T. T. 1861. 

•—The omission to take anj step after the notice* is a tacit refusal. 
Lord Campbell, C. J. — ^Enough appears to call upon you to show per- 
formance.] 

^„^-, ♦Sir F. KeUffj with whom were Peaeoek and Pearwny was then 
^ called upon by the Court, as to the demand by Thompson. — [Pat- 
TB80N, J. — Is there any instance of a shareholder making such an ap- 
plication as this, to ground a motion for mandamus against the Com- 
pany of which he ia one ? Lord Campbell, C. J. — I do not see why he 
may not. It is assumed that the performance is not only their duty, 
but for their advantage.] An advantage with a view to which he has 
invested his money. [Pattbson, J. — He calls upon himself, among 
others, to perform the duty. Lord Campbell, C. J. — He may have 
been a shareholder who dissented from an adoption of the report. If 
he joined in the adoption,, that might be an estoppel. I do not see an 
objection otherwise.] The report was merely a recommendation sob- 
mitted to the Company. [Pattbson, J. — In Regina v. The Eiastern 
Counties Railway Company, 10 A. & E. 581 (E. C. L. R. vol. 37), {a) 
the application was made by shareholders in the Company as well aa by 
landowners.] Sir F. Kelly was then stopped by the Court. 

Lord Campbell, C. J. — We all think that the rule should be made 
absolute. 

Patteson, Coleridge, and Erlb, Js., concurred. 

Rule ab8olute.(6) 

(a) See pp. 639, S49. 

(6) See, M to prooeediDfi on tho m«nd»nm% Regina «. Antborgnie, Ao., Raflway Compaay, 1 
B. k B. 372 (E. C. L. R. toL 72). 



The QUEEN v. The LANCASHIRE and TORESHIRE Railwaj 
Company. June IS. 

Reported, 16 Q. B. 906, note (i) (E. C. L. R. vol. 71). 



*866] 



*DOB on the demise of PALMER v. MARTHA ETRE. 
June 18. 



Lenor of plaintiff wai the auignee of a mortgage, made more than twenty yean befera 
eJeeUneat broaght ; hat the mortgagor had, within twenty yean, paid intereet on the mortgac*^ 
Defendant had been let into poneuion more than a year before the mortgage, by the mortgagar, 
and luffered by him ae a favonr, to oeenpy the premiaee withont payment of rent, and withoet 
any written acknowledgment The mortgagor's right of entry as against defendant a e c r a eC 
under itat 3 A 4 W. 4, o. 27, less than twenty yean before the mortgage, bat more th«a 
twenty years before ejectment broaght 

Held, that stat T W. 4 A 1 Vict o. S8, presenred to the lessor of the plaint, being a maw 
gagee, the same right of entry as if sUt S A 4 W. 4, e. 37, had not passed : and that» tka 
defendant's possession nerer haTing been snob as, before stat 8 A 4 W. 4, c 37, woold hawa 
•been advene toithe lessor of the plidntiff, he was entitled to reeorer; thongh tiie marl- 
gago^s right of entry within the meaning of stat S A 4 W. 4» a. 37, had aaoraed h e l ar a 
the mortgage, and was barred nnder that statnta by liq^ of time befna eoauBenessMat 
of the aetion. 



17 ADOLPHUS & ELLIS. N. S. 896 

Ejectmbnt for a hoase. On the trial, before Gresswell, J., at the 
last Spring Assises at York, it appeared that, in 1828, John Eyre, the 
owner in fee of the house, mortgaged it, with other property, for a term 
of 500 years, to a person deceased, whose executor was the lessor of 
the plaintiff; and interest had been paid by John Eyre, in 1841. The 
defendant, Martha, was the sister of John Eyre. Her mother had been 
tenant for life of the house ; the defendant resided there with her mo* 
ther up to the time of the mother's death, in 1821 ; and from that time, 
which was before the mortgage and more than twenty years before the 
commencement of the action, she had been permitted by John Eyre, 
who on the death of the tenant for life became entitled to the fee, to 
reside there without payment of rent ; and she never had made any 
written acknowledgment of her brother's title. It was contended for 
the defendant that by stat. 8 & 4 W. 4, c. 27, the entry was barred. 
The answer was, that the right of entry was preserved by stat. 7 W. 4 
& 1 Vict. *c. 28. The learned Judge directed a verdict for the r«Q/.» 
defendant, reserving leave to move to enter a verdict for the ^ 
plaintiff. 
KnowleBj in last Easter Term, obtained a rule nisi accordingly. 
Wat9on and 12. Hall^ in this term (May 80th), showed cause.(a) — The 
defendant was in possession in 1821 ;. and the right of entry first ac- 
crued, within the meaning of stat. 8 & 4 W. 4, o. 27, s. 2, at the latest 
in 1822. If the possession of the defendant commenced in such a man- 
ner that, under the old law, it would have been held possessio fratris, 
the effect of stat. 3 & 4 W. 4, c. 27, s. 18, is that the right of entry 
accrued in 1821 when she first entered. If she was tenant at will, or 
from year to year, it accrued, under sects. 7 and 8, at the end of a 
year, that is in 1822. In either way, the right of entry of John Eyre, 
and those claiming under him, was barred, several years before this 
action commenced. But it is said that, inasmuch as the lessor of the 
plaintiff is a mortgagee, his right of entry is giv^n by stat. 7 W. 4 & 1 
Vict. c. 28. That statute was passed immediately after the decision in 
Doe dem. Jones v. Williams, 5 A. & E. 291 (E. C. L. B. vol. 81), in 
consequence of the doubt there thrown out by Patteson, J. [Lord 
Campbell, C. J. — The point suggested by my brother Patteson alarmed 
mortgagees, as well it might : and, in consequence, that very learned 
Judge Littledale drew the Act 7 W. 4 & 1 Vict. c. 28.] The object of 
that Act was to obviate the doubt whether the mortgagee was not by 
stat. 8 & 4 W. 4, 0. 27, barred as against the mortgagor. It *effec- 



taates that object ; the mortgagee may enter upon the mortga- 



[♦868 



gor, and upon any one on whom ^he mortgagor could enter ; but it never 
could be intended that a mortgagee could enter on any person. It may be 
material to observe that the right of entry in the present case accrued 
before the mortgage ; and therefore the question comes to be whether 

(o) Before Lord Oaapbefi, 0. J., PaUoeon, Celeriage, and lilt, U. 



368 DOB d. PALMER v. EYRE. T. T. 1851. 

a person out of possession of land can, by a subseq^ient mortgage and 
payment of interest, confer a right of entry on another, which shall con- 
tinue after his own is barred. In Doe dem. Goody v. Garter, 9 Q. B. 
868 (E. G. L. R. vol. 58), the lessor of the plaintiff was a mortgagee, 
yet the statute was held a bar. 

Knowlen and Unthanhy contra. — In Doe dem. Goody r. Garter, it 
does not appear that interest had been paid within the twenty years; 
most probably there was no evidence of that fact ; at all events the 
Court had not their attention called to stat. 7 W. 4 & 1 Vict. c. 28, and 
gave no decision on its construction. This is the first time that the 
Court has had«to give the statute a judicial interpretation. Its object 
was to secure mortgagees, whose title was shaken by stat. 3 & 4 W. 4, 
c. 27 ; that could scarcely be effected by anything short of an enact- 
ment that a mortgagee who had received payment within twenty jean 
should be in the same position in which he was before stat. 3 & 4 W. 4, 
c. 27 ; and, accordingly, the words of stat. 7 W. 4 & 1 Vict. c. 28, are 
express, that he may make his entry <> anything in the said Act not- 
withstanding." The meaning must be, that he is barred where, before 
^or^q-^ stat. 8 & 4 W. 4, c. 27, he would have been barred, and not *olher- 
-* wise. Now in the present case it is clear that, but for stat. 3 k 
4 W. 4, c. 27, the lessor of the plaintiff would have had a right of entry; 
for the possession of the defendant never was adverse to that of her 
brother John Eyre, nor, consequently, to that of his mortgagee. It 
would be different, probably, if the possession of the defendant had been 
adverse, or if the title of the mortgagor had been extinguished under 
stat. 3 & 4 W. 4, c. 27, s. 34, at the time of the mortgage. 

Cur. adv. vulL 

Lord Campbell, C. J., now delivered the judgment of the Court. 

We are of opinion that in this case the verdict ought to be entered 
for the lessor of the plaintiff. Looking only to stat. 3 & 4 W. 4, c. 27, 
the action is barred ; for it was not commenced within twenty years 
next after the time at which the right to bring such action first accrued 
to the lessor of the plaintiff or to any person through whom he claims. 
The facts that the defendant was the sister of John Eyre, and that she 
held with his consent, are now immaterial ; the possession of a relation 
of the person entitled being no longer deemed the possession of the heir, 
and lapse of time for the requisite period, without payment of rent or writ- 
ten acknowledgment, giving a title irrespective of any consideration 
whether the possession was adverse. The defendant, having been tenant 
at will to her brother, had been in possession more than twenty-one 
years'from the time of her entry, without payment of rent or written 
acknowledgment ; and under stat. 3 & 4 W. 4, c. 27, the fee woold 
♦^701 ^*^® vested in her ; Doe dem. Goody *v. Carter. But we most 
^ look to the statute, 7 W. 4 & 1 Vict. c. 28, upon which a Court 
of law is now for the first time called upon to put a construction. 



17 ADOLPHUS & ELLIS. N. S. 870 

1 

In the year' 1828, John Eyre, being seised in fee of the house in 
question, mortgaged it for* a term of 500 years: the lessor of the plain- 
tiff is now the assignee of the mortgage ; and the mortgagor had paid 
him interest on the mortgage till recently before the commencement of 
this action. His counsel contend therefore that his right of recovery 
is the same as if stat. 3 & 4 W. 4, c. 27, had never passed, in which 
case, there having been no adverse possession, the action would clearly 
have been maintainable. The statute relied upon, after reciting that 
doubts had been entertained as to the effect of the former statute «« so far 
as the same relates to mortgages," enacts «< that it shall and may be lawful 
for any person entitled to or claiming under any mortgage of land" to 
« bring an action" « to recover such land at any time within twenty years 
next after the last payment of any part of the principal money or inte- 
rest secured by «uch mortgage, although more than twenty years may 
iiave elapsed since the time at which the right" to brin^ such acf^ion 
"shall have first accrued." This language in its natural and gramma- 
tical sense applies to the present case. The lessor of the plaintiff is en- 
titled to and claims under a mortgage of the house to recover which the 
action is brought ; and he has brought his action within twenty years 
next after the last payment of interest secured by such mortgage, 
although more than twenty years had elapsed since the time at which 
the right to bring the action had first accrued. The defendant's 
counsel contend that the enactment must be confined to the case 
*where the mortgagor has himself been and continued in posses- 
sion of the mortgaged premises, or might himself maintain an 
ejectment against a tenant in possession; and we are told that its 
object was to remove a doubt whether, where the mortgagor had been 
allowed to remain in possession more than twenty years after the for<- 
feiture of the mortgage by default in repaying the mortgage-money, 
although the interest on the mortgage continued to be regularly paid^ 
the mortgagee could maintain an ejectment against the mortgagor or 
his tenants. But we must learn the object of the Legislature from the 
language of the statute : and it clearly appears to have been, to make 
mortgages an available security, where they were good and valid in 
their inception, and the mortgagee, having received payment of his 
interest, cannot be charged with any laches. This object would be 
effectually defeated if we were to adopt the limited construction pro- 
posed, by interpolating the words necessary for that purpose. In the 
vast majority of mortgages in England, the mortgagor is not in the 
actual possession of the mortgaged lands when the mortgage is executed^ 
and they afterwards remain in the possession of his tenants. The 
mortgagee and those who advise him are perfectly satisfied if, upon 
reference to a conveyancer, the title to the premises to be mortgaged, 
is pronoanced good, and, upon a reference to a surveyor, the value is 
found to be sufiicient. If the mortgagee receives regular payment of 
VOL. XVII. — 81 X 



[»371 



tn DOE d. PALMER v. EYRE. T. T. 1861. 

f 

his interest under the mortgage, he never inquires, and he would not 
be allowed to inquire, whether rent is regularly paid by the tenants to 
the mortgagor. 

The mortgagor, therefore, according to the defendant's constroction 
♦QT91 ^^ ^^^ statute, by omitting to receive *rent for twenty years or 
^ to obtain a written acknowledgment from a tenant, maj place 
the mortgagee in the position of suddenly finding that for the repay- 
ment of the mortgage-money he must look only to the personal credit 
of an insolvent. On the other band it is said that, although there may 
be little sympathy for a person who, like the defendant, ungratefully 
and fraudulently seeks to turn long-continued kindness into the means 
of robbing a benefactor, we must regard the hardship which may be 
thrown upon a purchaser for value, who for twenty years has been in 
undisputed possession of the estate. But a purchaser can only be 
affected by mortgages executed prior to his purchase; in a register 
county he must have full notice of a prior mortgage, or it is Void as 
against him ; and, even without the benefit of a register, there must 
have been negligence on his part if an existing mortgage is not dis- 
covered. It was argued before us that the owner of an estate, who is 
himself barred by a tenant having occupied twenty years without pay- 
ment of rent or acknowledgment, might, by executing a mortgage, and 
payment of interest to a mortgagee, vest in the latter a right of entry 
which he could not exercise himself: but by such a mortgage nothing 
would pass, under stat. 8 & 4 W. 4, c. 27, s. 84, the right of the owner 
being extinguished at the end of the period of limitation. 

A case may be put, where a person who has occupied as tenant by 
Buiferance nearly twenty years without payment of rent or written 
acknowledgment might be deprived of the benefit of the Statute of 
Limitations by the owner mortgaging the premises and going on, for a 
great many years afterwards, paying, interest to the mortgagee. Bat 
^nrro-i ^^ canuot bc considered to have been *an object of the Legislature 
-* to protect the interest of such a person. The mortgagor cer- 
tainly may, in some cases, gain a consequential advantage by our con- 
struction of the statute, although it was passed for the security of 
mortgagees. Still, without this, the security intended to be given to 
mortgagees cannot be enjoyed. 

Seeing no inconvenient consequences which would follow from sup- 
posing that the words of the Legislature were used in their natural and 
grammatical sense, we think that we are not at liberty to put any forced 
or limited construction upon them, and therefore .that the lessor of the 
plaintiff is entitled to our judgment. ^ Rule ab8olate.(a) 

(o) Reported by 0. BlMkban, Eiq. 
Sm the next oMe. 



17 ADOLPHUS & ELLIS. N. 8. 378 



DOE, on the seyeral demises of BADDELET and WALLER, v. 
MASSEY. June 18. 

A tenut taking in land a4)*m°^ ^ ^i> o^n» ^7 eneroMhoient, mwit, ai between bimaelf and 
the landlord, be deemed, primi facie, to take it as part of tbe dcmiied land : bat tbat pre- 
lamption will not prevail for tbe landlord's benefit against third persons. 

The laodlord of A. and B., adjacent closes, mortgas^d them, and afterwards demised A. Tbe 
tenant of A. built npon B. without leaTe of the landlord, who, on permission being asked, 
refused it, saying he had granted rights over B. to occupiers of other acyoining lands. The 
tenant held both A. and B. for twenty years, paying rent to the landlord under the demise 
of A., but not expressly in respect of B. Held that, on this evidence, he might insist, as 
against the landlord^ on a twenty years' occupation of B. within stat 3 A 4 W. 4, c. 27, ss. 2 
andl ' 

On a purohase of lands whioh were under mortgage, the purchaser paid the principal and 
interest due on the mortgage, and took a conveyance in which mortgagor and mortgagee 
joined, of tbe premises, and of the mortgagor's equity of redemption and all the residue of hia 
interest: 

field, that the purebaaer was a person "claiming under'* a mortgage, within stat. 7 W. 4 A 1 
YieL c. 28 ; and that the twenty years' limitation under stat 3 A 4 W. 4, o. 27, s. 2, ran 
from the paying off of the mortgage and interest 

Ejectment for a workshop, &c., and one acre of land, in the parish of 
St. James, Clerkenwell, in the *county of Middlesex. Demises, 



by^Baddelej on 18th and by Waller on 12th, of April, 1850. 



[*374 



The plaintiff's particular of demand described the premises as a piece 
of ground situate between the backs of the gardens of the houses Nos. 
9 and 10, Wilmington Square, in the aboye-named parish (or part of 
the said gardens), and the gardens or yard of houses in John Street, 
Wilmington Square aforesaid ; together with the workshop, erections, 
and buildings standing and being thereon. 

On the trial, before Coleridge, J., at the sittings in« Middlesex during 
last Easter term, it appeared that, in April, 1821, the Marquis of North- 
ampton, being tenant in fee of a piece of ground called Spa Fields, 
demised certain parcels of it to Qeorge Groodwin for 99 years : and that 
Goodwin, in May, 1822, demised part of these lands, including the 
ground now in question, to John Wilson, a builder, for 95 years. Houses, 
9 and 10 Wilmington Square, had already been built upon the demised 
lands. In July, 1822, Wilson mortgaged the lands to Benjamin €h>ode 
for the residue of the term, to secure payment of 80002. In 1824, 
Goode, by conyeyance to which Wilson was a party, assigned the mort- 
gage to Stewart Marjoribanks and others. In June, 1825, Wilson exe- 
cated a farther mortgage to George Child of the same premises, subject 
to the mortgage last before mentioned. 

Wilson continued in possession, and, on 26th May, 1829, demised a' 
part of the mortgaged lands, adjoining the parcel now in dispute, to 
Massey, the defendant, for 21 years. Massey soon afterwards requested 
Wilson to grant him a lease also of the ground now in question (being 
at tbat time waste) for the purpose of building? Wilson had already 
granted a right of way over this ground to the occupiers of 9 and 10 



874 BOE d. BADDELEY v. MASSBY. T. T. 1851. 

^nnr-i Wilmington Square; *and he therefore declined to grant Maasey 
^ the lease, or any permission to build on the spot ; and be told 
Massey that, if he built there, he must do it on his own responsibility. 
Massey then built on this piece of ground the workshop and premises 
described in the particular, Wilson not interfering, and never receiving 
any rent in respect of this parcel. 

By indenture between Marjoribanks and his co-mortgagees of the first 
part, Oeorge Child of the second part, Wilson of the third part, and' 
Robert Child of the fourth part, dated 20th August, 1834, the principal 
and interest due on the mortgages being then paid off, Wilson^s term 
in all the mortgaged premises was assigned, by direction of Wilson, to 
Robert Child (the party paying off the mortgages), to hold free from 
the said mortgages ; and all Wilson's equity of redemption, and all the 
rest, residue, &c., of hia interest in the premises, were at the same 
time conveyed to R. Child. On his death his executors, according to 
the directions of his will, sold the premises, and assigned the term to 
William Croft Fish, the purchaser. On the death of Fish, his executor, 
in 1846, acting under the directions of his will, sold the premises and 
assigned them to Richard Rock Baddeley, the first lessor of the plain- 
tiff. The other lessor of the plaintiff, Arthur Waller, claimed und«r a 
mortgage from Baddeley, executed in 1846. 

Massey on the expiration of his lease, in 1850, gave up the premises 
demised to him by Wilson, but refused to surrender the land adjoining. 

It was urged on behalf of the defendant that the action was barred 
by Stat. 3 & 4 W. 4, c. 27, ss. 2, 3, for want of possession or receipt 
of rent within twenty years ; and that the claim was not saved by stat. 
*«i761 "^ W- * * J^ ^^c^- ^- 28, 4;he lessor of the plaintiff Baddeley *not 
^ being a person «< entitled to or claiming under any mortgage" 
within the meaning of that Act. Coleridge, J., directed a verdict for 
the plaintiff on the first demise, giving leave to move to enter a nonsuit 
The defendant had a verdict on the second demise. M. Chamben, in 
last Easter term, obtained a rule nisi according to the leave reserved. 
In this term,(a) 

Knowlea and ffawkins showed cause. — First, the defendant cannot 
dispute that he held the close in question, down to 1850, as tenant to 
Wilson and his assigns. This and the close demised in 1829 were parts 
of one estate which was in the hands of Wilson. The close in question 
was not demised by Wilson to Massey ; and it is said that others bad 
rights over it : but Massey encroached upon it with the acquiescence 
if not the consent of Wilson ; and, at all events, any encroachment whicb 
he made during his tenancy must be taken to have been for the benefit 
of his landlord, if the contrary be not proved ; Doe dem. Lewis v. Rees, 

6 Car. & P. 610 (E. C. L. R. vol.' 25), Doe dem. Dunraven v. Williams, 

7 Car. & P. 332 (E. 0. L. R. vol. 32), Doe dem. Harrison v. Murrell, 

(a) Jane Tth. Before Lord CampbeU, C. J., Patteeon, Coleridge, and Brl«, Jn 



[*877 



17 ADOLPHUS & ELLIS. N. S. 876 

8 Car. & P. 134 (£. C. L. R. vol. 34), Doe dem. Lloyd v. Jones, 15 M. & 
W. 580. t(a) An enclosure of waste by a tenant is to be presumed to have 
been made for the landlord and with his assent, particularly where the 
landlord has a reversionary interest in such waste ; Bryan dem. Child v. 
Winwood, 1 Taunt. 208. If so, the close here in question was insepa- 
rable from the land demised in 1829, and should have been given up 
with it. [Lord Campbell, C. J. — The principle of law must be that 
the ^lessee is estopped from denying that the whole premises are 
those which were demised to him. It would be strange to lay 
down that the tenant steals for the benefit of his landlord.] There is 
nothing here to rebut the presumption that the land was taken in for 
the landlord's benefit. [Lord Campbell, G. J. — If it was so taken, 
the landlord is thereby entitled as against the tenant who took, but not 
aa against a third person.] If that person «did not interfere for twenty 
years, the fact might operate as against him. On the evidence in this 
case, the tenant's conduct is not that of a person encroaching for him- 
self. He applies for a lease, is told that the landlord will not interfere 
(having a difficulty in granting the lease, on account of his own conduct 
with respect to a right of way), and thed openly proceeds in the same 
manner as if the lease had been granted. 

But, further, the claim of the lessor of the plaintiff is saved by stat. 
7 W. 4 & 1 Vict. c. 28, the last payment of interest on Wilson's mort- 
gage having been made on 20th August, 1884. <rhat statute was 
passed expressly for the relief of mortgagees, whose rights were doubt- 
ful onder stat. 3 & 4 W. 4, c. 27. [Lonl Campbell, C. J. — The imme- 
diate evil contemplated was that the statute of 3 & 4 W. 4 might be 
held to run from a default in payment of the mortgage-money, though 
the interest might have been paid for nineteen years afterwards. (6) 
Bat the Act may apply to other cases.] It is true that, in this case, 
Wilson's mortgage was paid off before Robert Child acquired the title 
from which that of Baddeley is derived. But the conveyance to Robert 
*Child was by the mortgagor and mortgagee; and stat. 7 W. 4 r«Q.^n 
& 1 Vict. c. 28, preserves the right (for twenty years after any ^ 
payment of interest) to any person « entitled to or. claiming under" any 
mortgage. [Lord Campbell, C. J. — Whatever right of entry was in 
the mortgagee passed to Robert Child by the conveyance.] KnowleM 
referred to the argument on behalf of the plaintiff in Doe dem. Palmer 
r. Eyre, ante, p. 366. 

Chambers and John Hendersorij contr Jl. — First : If the argument on 
the other side be correct, Massey was a tenant at will of the land taken 
in by encroachment ; and there has been no notice to determine the 
will. But the encroachment could not take effect for the benefit of the 
landlord, as against a third person. It was pointed out in argument, 

(a) 8e« Andrews v, Hmilea, 2 B. A B. 349 (B. C. L. R. toI 75). 
(6) 8oe Due dem. Jooec v, WUliams, 5 A. ^ B. 291 (E. C. L. R. yaV 81). 

X2 



878 DOE d. BADDELEY v. MASSfiY. T. T. 1851 

in Doe dem. Lloyi v. Jones, 15 M. & W. 584,t that, " in Doe dem. 
Coldough V. Mulliner, 1 Esp. N. P. C. 460, Lord Kenyon ruled, that 
an encroachment bj the tenant on the waste did not belong to his land- 
lord, and is reported to have revolted at the idea that the tenant coolJ 
make his landlord a trespasser." Alderson, B., remarked, in the first 
cited case : «« The answer to that is, that the presumption may be re- 
butted by the repudiation of the landlord, as well as by the acts of the 
tenant.'* Here the landlord refused altogether to countenance the 
encroachment. In Doe dem. Golclough v. Mulliner, the lord was a third 
person, whose rights could not be affected by anything that* took place 
between the landlord and tenant : so, in the present case, was the mort- 
gagee. In Doe dem. Dunraven v. Williams, 7 Gar. k P. 333 (E. C. L 
R. vol. 32), Coleridge, J., said: ««Prim& facie, the law presumes that 
♦^7Q1 *^^^U enclosure made by a tenant adjoining the demised premises 

-* was made by him for the benefit of his landlord :" but he added: 
i^and there is no evidence in this case to rebut that presumption.'* ^'If 
you think that the defendant enclosed the land in question, as he has 
said he' did, as being part of the premises comprised in his lease, his 
possession was not adverse." * The question is one of evidence : and 
here it was not put to the jury to say whether, in fact, the act of en 
croachment was done for the landlord's benefit. [Lord Gampbsll, 
G. J. — We think, as to this point, that the close in question cannot be 
considered part ofethe demised premises for the purposes of* the Act: 
and, if it was not, there has been no acknowledgment or payment of 
rent within twenty years to take the case out of stat. 3 & 4 W. 4, c 
27, sects. 2, 3.] 

Then, secondly, the lessor of the plaintiff is not a person << entitled 
to or claiming under any mortgage of land" within the meaning of stat. 
7 W. 4 & 1 Vict. c. 28. He claims under a mortgagee, in the sense of 
tracing title through him, but not under a mortgage. The mortgage 
in this case were at an end when the term passed to Robert Child. 
[Lord Gampbell, G. J. — The mortgagees were parties to the convey- 
ance ; what estate was in them ?] The legal estate. [Lord Campbell, 
G. J.— -Was not the estate, such as they had, conveyed so as id vest in 
Ghild ?] Ghild became possessed of the original estate under Goodwin's 
lease to Wilson : the mortgage was immaterial to his right. The statute 
applies only wnere there is an existing mortgage at the time of action 
brought. It was to avoid doubtful questions between actual mortgagors 
and mortgagees under stat. 3 & 4 W. 4, c. 27, that the latter Act was 
^ooA-i passed. *Sect. 28 of the former statute required a written 

^ acknowledgment to bar the mortgagee, but did not expresslj 
make payment of interest sufficient to prevent his being barred. Thai 
is remedied by stat. 7 W. 4 & 1 Vict. c. 28. If the former Act con- 
templated, as its language shows, the relations of parties under existing 
mortgages, the latter must be construed as having the same view. The 



[*881 



17 ADOLPHUS & ELLIS. N. S. 380 

defendant relies on the strict words of the statute^ and a clear twenty 
years' possession. When the payment took place in 1834, his occupa- 
tion was not interfered with or noticed. [Patteson, J. — A mortgagee 
does not consider who occupies the premises. Lord Campbell, C. J. — 
No mortgagee throaghout England and Wales thinks of troubling him- 
self as to who occupies the premises, if the interest is paid.] In Doe 
dem. Goody t». Carter, 9 Q. B. 863 (E. C. L. R. vol. 68), it was held 
that the son's tenancy under the father was not determined when the 
father mortgaged the premises. The Construction now attempted would 
modify the statutes very seriously. In the case, not uncommon, where 
by continued non-payment the title is within a few months of being 
barred, the mortgagor, by a payment of mortgage-money, may give 
himself a new term of twenty years. That was not the intention of 
the last statute, which was intended for the protection of mortgagees, 
not of mortgagors. As long as the mortgage subsists, it enures to the 
ordinary purposes of a mortgage in securing principal and interest ; 
and he in whom it is vested has the statutory and other rights of a 
mortgagee. But, when it is paid off, the peculiar provision of stat. 7 
W. 4 & 1 Vict. c. 28, is at an end, and stat. 3 & 4 W. 4, c. 27, again 
governs. *[£rlb, J. — Do you draw any distinction between the 
mortgagee himself and the assignee of a mortgage? Do you 
say that, if a mortgagee takes an assignment of the equity of redemp- 
tion, he thereby loses the twenty years given by stat. 7 W. 4 & 1 Vict, 
c. 28 ?] Qufi purchaser, he is like any other person. [Erle, J. — Very 
often the mortgagee, when payments ^et into arrear, finds a purchaser 
of the mortgage and equity of redemption. You say that, as soon as a 
fee simple is created, the mortgagee's security is destroyed.] 

Cur. adv. vult. 
Lord Campbell, C. J., now delivered judgment. 
This case likewise(tt) depends upon the construction of stat. 7 W. 4 
& 1 Vict. c. 28. During the argument we overruled the point, made on 
behalf of the lessor of the plaintiff, that the bit of ground for which 
the ejectment was brought must be considered as having been taken and 
occupied by him as part of the demised premises in respect of which 
rent was paid ; for the conduct of both parties clearly showed the con- 
trary ; so that, as against Wilson or any one claiming under him, other 
than a mortgagee, lapse of time would be a bar. 

The real question here is, whether the lessor of the plaintiff can be 
considered ^« entitled to or claiming under" a mortgage. He is not a 
mortgagee, nor the assignee of a subsisting mortgage ; the mortgage 
which Wilson had created in 1822 was paid off in 1834, when the mort< 
gagee and th^ owner of the equity of redemption conveyed all their 
interest to the person under whom the lessor of the plaintiff claims. 

(«) Judgmtni waB girtn immedUtely before in Doe dem. Palmer v. Byre, ante, p. 366. 



882 DOE d. BADDELEY v. MASSBY. T. T. 1851. 

^QQty-i ^Although be is not entitled to the nunigagey we think that he 
"-' claifM under the mortgage. In no other way can the ststnte be 
made effectual for the protection of mortgagees. According to the 
construction we put upon it in Doe ,dem. Palmer v, Ejre, ante, p. 366, 
the mortgagee might have maintained an ejectment after the expiration 
of the twenty years, or he might have transferred this right of action 
by assigning to another who paid him off. But, suppose that the mort- 
gage-deed contains a power of sale, may the mortgagee not transfer 
the same right to a purchaser ? Is the purchaser barred by the lapse 
of time, and may he recover back the purchase-money which went in 
satisfaction of the mortgage T If so, the mortgagee who has regularly 
received payment of his interest may entirely lose his principal from 
the mortgagor having omitted to receive rent or an acknowledgment 
from the tenant for twenty years. On payment of the mortgage-money 
the mortgage ceases to exist as a security for money ; but the person 
to whom the mortgagee conveys his legal interest elaime under the mort- 
gage, although the equity of redemption should likewise be convejed 
to him. 

We are therefore of opinion that the lessor of the plaintiff is entitled 
to our judgment, and that the rule to enter the verdict for the defend- 
ant must be discharged. Rule discharged. 



♦383] ♦ABRAHAM HIRST v. JOHN HANNAH. June 17. 

A warrant of attorney, to confess Judgment a* a aeonrity for advaneei, was attested in due fora 
by an attorney, acting for defendant and as his attorney, and at his request, but who also 
acted, in the transaction, for the plaintiff. Defendant was informed that the attorney had 
been consulted by plaintiff. 

The warrant was executed on Oth March, 1847. Judgment was signed on 19th July, 184T; 
and a fi. fa. shortly after issued, but was not executed. 

The plaintiff, after the judgment was signed, gave fresh credit to the defendant in the way of hli 
trade. On 28th June, 1850, a levy was made. None of these facts were oonoealed. Th« 
defendant was adjudged a bankrupt on 29th July, ^50. A rule to set aside the warrant of 
attorney and all subsequent proceedings was obtained in Trinity term, 1851. 

Held, that, by stat. 1 A 2 Vict o. 110, s. 9, the attorney acting for the plaintiff oould not ui 
as attorney for the defendant, and that the objection, being made, must prevaiL 

Held, also, that the circumstances above stated did not preclude the assignees of the baokrnpt 
defendant from raising the objection. 

SembUf that lapse of time after execution levied, and other circumstances showing that tb« 
plaintiff was knowingly allowed to alter his position on the faith of a Judgment thos obtained, 
may preclude the defendant or his representatives from raising the objection. Sed Quart, 

Atherton, in this term, obtained a rule Nisi to set aside the war- 
rant of attorney, and judgment, and all ulterior proceedings in this 
cause. From the affidavits on both sides it appeared that, on 6th March, 
1847, the defendant^xecuted a warrant of attorney to confess judg- 
ment in the Court of Queen's Bench for 4000/., with a defeasance 
stating that the judgment was to be to secure payment of 20001. by 
certain instalments, and that no execution was to be issued till default. 



17 ADOLPHUS & ELLIS. N. 8. 883 

The warrant of attorney was duly filed ; and judgment was entered up 
on 19tli July, 1847. Soon after, default was made in payment of the 
4r8t instalment ; and a writ of fi. fa; then issued, but execution was 
stayed by the plaintiff. On 28th June, 1850, a levy was made, and the 
goods seized. Hannah, the defendant, was adjudged a bankrupt on 
29th July, 1850. 

The present rule was obtained, on 28th May, in this term, on behalf 
of Hannah's assignees, on the Aground that the warrant of at- r^coo^ 
torney was not duly attested. It was attested by an attorney A 
in due form ; but the objection made was, that he was at that time the 
attorney acting for the plaintiff. As to this, the facts appeared to be, 
that the witnessing attorney was acquainted with both Hirst and Han- 
nah ; that Hirst first consulted him as to the kind of security he could 
have, when he suggested a warrant of attorney ; and that, afterwards, 
Hannah, of his own accord, came to the attorney, and requested him 
to prepare a warrant of attorney. Hannah now deposed expressly that 
he employed the attorney as his attorney ; that in selecting him he was 
not influenced by Hirst, but solely by his confidence in an old friend ; 
and that he, and he only, paid the bill of costs ; but it was not denied 
that, besides the previous consultation with Hirst, of which Hannah 
was informed by the attorney on their first interview, the same attor- 
ney received the warrant of attorney from Hannah and kept it for 
Hirst, and acted as Hirst's attorney in entering up judgment and issu- 
ing execution. 

It further appeared that no concealment was practised; that the 
petitioning creditor, and assignee of Hannah, was aware of the judg- 
ment ; and that Hirst sold Hannah goods on credit, in the ordinary 
course of business, after the judgment was signed, which, it was de- 
posed, he would not have done, had he not believed the judgment was 
a valid security. 

Watson^ Cowling^ and Hugh Hill now showed cause. — The enactment 
in force on this subject is stat. 1 & 2 Vict. c. 110, s. 9, which enacts 
that (« no warrant of attorney '*'to confess judgment in any per- r^eo^^ 
sonal action, or cognovit actionem, given by any person, shall ^ 
be of any force unless there shall be present some attorney of one of 
the superior Courts on behalf of such person, expressly named by him 
and attending at his request, to inform him of the nature and effect of 
such warrant or cognovit, before the same is executed ; which attorney 
shall subscribe his name as a witness to the due execution thereof, and 
thereby declare himself to be attorney for the person executing the 
same, and state that he subscribes as such attorney." Now here the 
attesting witness is shown by the affidavits to have been retained by 
Hannah and expressly named by him. [Patteson, J. — But he had 
been in previous communication with Hirst, and advising him on the 
matter : and, when the warrant of attorney was executed, it was given 
VOL. xvn.— 82 



885 HIEST ». HANNAH. T. T. 1851. 

to bim to keep for Hirst. Now, in Sanderson v* Westley, 6 M. & W. 
98, 100,t it was said by my brother Alderson : " Wherever there is but 
one attorney present, it ought to be perfectly clear that he is not the 
plaintiff's attorney." Erlb, J. — In the present case it seems clear that 
the attorney was named by Hannah, and was bonfi fide acting for Han- 
nah ; but it seems also that he was acting as attorney for Hirst. Lord 
Campbell, C. J. — The question, therefore, must be whether, consist- 
ently with the decided cases, a warrant of attorney so attested is valid.] 
In WaJton v. Chandler, 1 Com. B. 806 (E. C. L. R. vol. 50), the war- 
rant of attorney was held valid, though the attesting attorney was in 
effect but the agent of the plaintiff's attorney. [Pattbson, J.— The 
defendant there had the opportunity of consulting a person not engaged 
^oo/i-i for the plainliff as the attorney here was. Lord Campbell, *C. 

-^ J. — Tou cite the case as if the subscribing witness there waa 
really acting under the plaintiff's attorney, and only nominally the de- 
fendant's attorney. But, whatever the facts might be, the Court in 
Walton t;. Chandler upheld the warrant of attorney on the ground that 
they thought the attesting attorney was in fact the attorney of the de- 
fendant only.] In Haigh v. Frost, 7 Dowl. P. C. 743, the facts were 
exceedingly like the present. [Coleridge, J. — There the decision of 
the Court proceeded on the express ground that in fact the attorney 
was not acting for the plaintiff.(a)] At all events, the present appli- 
cants cannot be permitted to raise the objection ; it has been waived 
by lapse of time. When a judgment has been signed, and execution 
has issued, those who come to set aside the judgment and so make all 
concerned in the execution trespassers by relation ought to do bo 
promptly. [Patteson, J. — Can this objection be waived ? Is not the 
effect of the statute to make a warrant of attorney not properly attested 
a nullity ?] It may be so ; and the judgment, founded on it, may be as 
voidable as if it had been entered up without any authority at all ; but 
the judgment is not void ; and the Court do not set it aside unless on 
the application of some person who has a right to make that applica- 
tion. Now the assignees of the bankrupt in their own time, and the 
bankrupt to whom they are privy, have knowingly allowed the plaintiff 
and the sheriff to act on the faith of the judgment ; execution has been 
issued ; fresh credit has been given ; the parties have altered their po- 
sition on the faith of this judgment ; and the assignees are therefore 
precluded from taking the objection. 
*^ft71 *Peacock and ffallj contrsl, were desired by the Court to»con- 

-' fine thei" argument to the point whether the assignees of Hannah 
were, under the circumstances, at liberty to raise the objection. The 
objection to a judgment on warrant of attorney, that the warrant was 
void, cannot be waived; Gripper v. Bristow, 6 M. & W. 807.t 1° 
Pryor v. Swaine, 2 Dowl. & L. 37, the warrant of attorney was sel 

(a) See this stated in the jndgment* 7 DowL P. C. 746. 



17 ADOLPHUS & ELLIS. N. S. 887 

aside five years after it was executed. In Cocks v. Edwards, 2 DowL 
P. C. N. S. 55, the judgment was set aside, at the instance of the 
defendant's assignees, more than a year after the proceeds pf an exectt- 
tioQ levied had been paid to the plaintiff. [Lord Campbell, C. J. — If 
the objection may be taken, it mast prevail ; but it is urged against you 
that the defendant has taken fresh credit on the faith of this judgment, 
and, after he has done so, it would be against all justice to permit him 
or those privy to him to take any objection of which he was aware at 
that time.] Even in such a case as is supposed, the statute i^ impera- 
tive. For the purpose of preventing frauds, it enacts that no warrant 
of attorney «« shall be of any force" unless the defendant has at the time 
the advice of an attorney acting on his behalf. It must always be 
known to the defendant that he has not had this advice ; and, ih almost 
every case where the warrant of attorney is to secure a loan, the 
advance is not made till after the warrant is signed. To establish the 
rule therefore that a subsequent advance precludes the defendant from 
taking the objection would make the statute inoperative. [Erle, J. — 
Suppose that a term of years were taken in execution, and the plaintiff, 
having bought it from the sheriff, proceeded to build *apon the tikqoq 
premises : do you say that the defendant might wait till 10,000/. ^ 
was spent in improving them, and then come and as a matter of strict 
law set aside the judgment and execution ?] It is difficult to say that 
there are not possible cases estopping a defendant from raising the 
objection ; but in the present case there are no advances beyond what 
had been agreed upon on the treaty for the warrant. The general credit 
given in the way of business is too remotely connected with the judg- 
ment to affect the question. 

Lord Campbell, C. J. — I should be unwilling to lay it down that no 
lapse of time, or fresh dealings between the parties, could preclude the 
defendant from raising an objection of this sort ; but, in the present 
case, I cannot say it has been so clearly made out that there have been 
any such fresh dealings, or alteration of the position of the parties on 
the faith of the judgment, as would warrant us in laying down, for the 
first time, that the assignees of the defendant are precluded from raising 
the objection. 

Then, they being at liberty to make the objection, and the objection 
being made, it must prevail. It is clear that, though the attesting 
attorney was acting for the defendant, he was also acting for the 
plaintiff. 

Patteson, J. — I think the words of the Act very clearly show that 
the attesting attorney must be, not the attorney for the plaintiff, but 
another person. 1^ think that under no circumstances, and in no case, 
can the attorney who is acting for the plaintiff be the attorney for the 
defendant within this statute ; and, if a defendant chooses to say that 



888 HIRST V. HANNAH. T. T. 1851. 

*^M1 he has confidence in the plaintiff's ^attorney, and will employ 
•^ him and nobody else, he ought to be told that the warrant of 
attorney wcuild be good for nothing, and that, if he persists, he cannot 
have the loan or the security. 

But in this case it is urged that there were advances after the execu- 
tion of the warrant of attorney, that there has been a lapse of time 
since the judgment was signed, and levy made, and that, consequently, 
the parties are precluded from now raising the objection. And so I 
should have said if it had not been for the strong words of the Act. 
But it is very difficult, to separate the judgment from the warrant of 
attorney which the Act says shall be of no force. And, if it may under 
any circumstances be set up, so as to be of force, I have great difficulty 
in saying when it is to be set aside. 

Coleridge, J. — I also think the rule must be absolute on the ground 
that a statute intended to prevent frauds, by requiring formalities, must 
be strictly observed or it is of no avail. 

Erlb, J. — I fear that formal provisions intended by the Legislature 
to protect persons from frauds are too often perverted to an opposite 
purpose. But I am not prepared at present to lay down any rule, the 
application of which to the facts of the present case would prevent the 
parties before us from raising this objection. Bule absolate.(a) 

(a) Reported by C. BUokbuxn, Esq. 



^„^^ *BANASTRE TARLETON, an Infant, by CTNRIC LLOYD, 
"^^^J his next Friend, v. HENRY THOMAS LIDDELL and JOHN 
GOBLE BLAKE. June 17. 

By settlement on the marriage of J. T. and IsabeUa* afterwards his wife, a moiety of certain 
lands was conveyed to trustees, to tlie use of J. T. and his assigns for his life ; remainder 
to the use of Isabella and her assigns for her life ; remainder to the use of the first and other 
sons of J. T. by Isabella saocessiTely in tail male ; remainder to the use of the daughters of 
J. T. by Isabella as tenants in common in tail general, with cross remainders between them; 
remainder to the use of the settlor, A. the father of Isabella, his heirs and assigns for erer. 
J. T. was seised in fee of the other moiety. 

By indentures executed after the marriage, in 1815, and to which J. T-,, his said wife, and J. C 
T. his eldeat son (then of age) were parties, the settled moiety was conveyed to a tenant for 
the purpose of suifering a recovery, and the unsettled moiety, with other lands of which J. 
T. was seised in fee, were conveyed to trustees and their heirs : and the uses of the respeetiTS 
e6nveyances were declared as follows : 

As to the first-mentioned moiety, to the use of J. C. T. and his heirs during the life of J. T.; 
remainder to the use of Isabella and her assigns for her life : and, as to the same moie^ 
afler the determination of the life estates, and also as to the moiety and lands secondly above 
mentioned from and immediately after the execntian of this conveyance, to the use of J. 
G. T. and his assigns for his life, remainder to the use of the first and other sons of J. C. T. 
successively in tail male , remainder to the use of B. T., the younger son of J. T., and his 
assigns for his life ; remainder to the use of the first and other sons of the same E. T. sne- 
eessively in tail male ; remainder to the use of the first and other sons thereafter to be bora 
to J. T. by Isabella or any future wife successively in tail male ; remainder to the use of M. 
the only daughter of T., and her assigns for her life; remainder to* the ue of the fint and 



17 ADOLPHUS & ELLIS. N. 8. 890 

Other loiu of II. raeeMsiTely in tail male ; remainder to the use of the first and other 

daagbters thereafter to be bom to J. T. by his then present or any future wife succefsivoly 

in tail male ,* remainder to the nae of the first and other sons of the body of J. C. T. sucoes- 

iirely io tail general; remainder to the nse of the first and other sons thereafter to be born 

of the body of J. T. by his then present or any fntnre wife successively in tail general ; 

remainder to the nse of the first and other sons of the body of M. (the then only daughter) 

roecesslTely in tail general ; remainder to the use of the first and other daughters to be bom 

of the body of J. T. by his then present or any future wife, suooessively in tail genera} ; 

remainder 'to the nse of J. T. in fee. The recovery was suffered; A. B. being demandant, 

C. D. tenant, and Isabella and J. C. T. Toochees, who Touched the common vouchee. 

J. T. was a trader, within the bankrapt laws, and executed the conveyances of 1815 with intent 

to delay and defraud his ereditors: but J. C. T., his son, was not privy to that intention. J. 

T. became bankrapt; and his assignees filed a bill in Equity to set aside the deeds of 1815, 

ud the recovery; and a decree was made, declaring the same void as against the ereditors, 

and the assignees entitled to the lands ; it was also ordered that the indentures should be 

given up to the assignees to be cancelled, which was done. 

The assignees afterwards agreed to sell their interest in J. T.'s estates to J. C. T. : and by 

indentures of July, 1821, made for the purpose of barring all estates tail, remainders, ^c, in 

and expectant on the first-mentioned moiety, and for limiting the same as after mentioned, 

J. C. T., and the assignees at the request and for the accommodation of J. C. T., bargained, 

sold, and released, Ac, the first-mentioned moiety to C. D., in order that he might be tenapt 

to and suffer a recovery, which was declared to enure to the nse of the assignees during the 

life of J. T. the father, and, from and after his decease, to the nse of J. C. T. in fee ; the 

release to be void on non-payment of purchase-money by J. C. T. The recovery was suffered 

accordingly, J. C. T. being vouchee. And afterwards, by indentures of March, 1823, reciting 

payment of the said purchase -money, the assignees bargained, sold, and released, Ac, to J. 

C. T., the life estate of J. T. in the first-mentioned moiety, and the fee simple in the other 

moiety. 

Afterwards, J. T. and his wife died; and J. C. T. sold, and, in 1849, conveyed by deed, the fee 

simple of the entirety to a purchaser for value. 
On a case stated for Uie opinion of this Court, whether the eldest son of J. C. T. had any and 

what estate or interest in the first-mentioned moiety : Held : 
That the deed of 1815 was made by J. T. without consideration, and was fraudulent and void 

as against creditors by stat 13 Elis. c 5, and that nothing passed by it to J. C. T. 
That, J. C. T. being a party to the recovery, its operation as to him was not preserveu by stat. 13 
Eliz. c. 5; a. 4. But that it barred the estates of the younger brother of J. G. T., his sister, 
and the original settlor, they being persons having remainder or reversion within sect 4. 
That, if the release of 1815 was, under these circumstances, wholly vitiated, the recovery of 
1815 operated, not to the former uses, but as a simple recovery without any deed to lead 
nses: and that J. C. T. thereupon became tenant in fee; and that, even if be had* continued 
tenant in tail, his estate became a fee simple by the recovery and deeds of 1821 and 1823, 
and, consequently, his eldest son had now no interest 
That, whatever order might have been made by the Court of Chaneery, if J. C. T* had inter- 
posed to prevent the deed of 1815 (to lead uses) from being entirely cancelled, the recovery, 
as the case now stood, enured to the use of J. T. for life (which interest passed to his 
assignees), with remainder to J. C. T. in fee; all the uses declared by the deed of 1815 being 
void. And 
That, even if, ander that deed, J. G. T. had become tenant for life in remainder with remainder 
to his first son in tail, yet the conveyance by that deed was a voluntary conveyance within 
stat 27 Elia. o. 4, and void (notwithstanding the recovery in 1821) as against a purchaser 
for value; and that, on the conveyance to such a purchaser in 1849, the interest of J. G. T., 
having become by the recovery of 1815 (for want of a deed to lead nses) a fee simple interest, 
was, by the conveyance of 1849, transferred to the purchaser. 

ViCB Chancellor Sir J. L. K. Bruce sent the following case for the 
opinion of this Goart. 

*By indenture dated the 80th day of Septemher, 179.0, and rutoM 
made between, and executed by, Alexander Collingwood of Un- ^ 
thank in the county of Northumberland, Esq., and Isabella Colling* 
wood, spinster, second daughter of the said A. Collingwood by Margaret 
his wife, of the first part, John Tarleton of Liverpool, Esq., of the 

Y 



891 TARLETON v. LIDDELL. T. T. 1851. 

second part, and Clayton Tarleton of Liverpool, Esq., and Tbomu 
Collingwood of Gray's Inn, Esq., of the third part, one undivided 
moiety of a manor and hereditaments in the county of Northumber- 
land, therein particularly described, and hereinafter called «' The Col- 
lingwood Estates," was conveyed anjd assured unto the said Claytou 
Tarleton and Thomas Collingwood and their heirs. To the use of the 
said Alexander Collingwood, his heirs and assigns, until a marriage 
then intended between the said John Tarleton and Isabella Colling- 
wood was duly had and solemnized; and, after the solemnization 
*M^1 thereof. To *the use of the said John Tarleton and his assigns 
^ for his life without impeachment of waste, with remainder to 
the use of the said C. Tarleton and T. Collingwood and their heirs 
during the life of the said John Tarleton, upon trust to preserve the 
contingent uses and estates thereinafter limited from being defeased or 
destroyed ; with remainder to the use of the said Isabella Collingwood 
and her assigns for her life ; with remainder to the use of the said C. 
Tarleton and T. Collingwood and their heirs during the life of the said 
Isabella Collingwood (as before, to preserve contingent uses, &c.); 
with remainder to the use of the first and other sons of the said John 
Tarleton by the said Isabella his then intended wife successively in 
tail male ; with remainder to the use of the daughters of the said John 
Tarleton by the said Isabella his wife as tenants in common in tail gene- 
ral with cross remainders between them ; with remainder to the use of 
the said Alexander Collingwood, his heirs and assigns for ever. 

The marriage between the said John Tarleton and Isabella Colling- 
wood was dulyjiad and solemnized; and there was issue of the said 
marriage, John Collingwood Tarleton the eldest son, and other children. 
The said John Collingwood Tarleton attained the age of twenty-one 
years before the 18th day of March, 1815. 

At the time of the execution of the indentures of the 17th and 18th 
days of' March, 1815, hereinafter stated, the said John Tarleton was 
seised to him and his heirs for an estate of inheritance in fee simple of 
and in the other moiety of the said Collingwood estates, and also of and 
in the entirety of certain estates called the Ingram estates. 

By indenture of bargain and sale, dated the 18th day of March, 
♦3931 ^^^^' ^*^^y ©nrollc<i? 4c. (in the 'Common ♦Pleas, as of Easter 
^ term, 55 G. 3), made between the said John Tarleton and Isabella 
his wife of the first part, the said John Collingwood Tarleton of the 
second part, William Ainge of the third part, and Robert Blake of the 
fourth part, the said John Tarleton and Isabella his wife and the said 
John Collingwood Tarleton did grant, bargain, sell, ratify, and confirm 
unto the said William Ainge and his heirs the said undivided moiety 
eomprised in the said indenture of settlement of the 80th day of Sep- 
tember, 1790, of and in the said Collingwood estatesi To hold the same 
unto and to the use of the said W. Ainge, his heirs and aaaigps for 



17 ADOLPHUS & ELLIS. N. 8. 898 

e^er, to the intent, &c. (that Ainge might become tenant of the free* 
hold of the said moiety for the purpose of suffering a recovery, kc. ; 
Robert Blake to be demandant, William Ainge tenant, and Isabella 
Tarleton and J. C. Tarleton vouchees) ; which recovery when suffered 
it was thereby declared, &c. (declaration that it should enure to such 
uses, upon such trusts, intents, and purposes, and with, and subject te 
sach powers, provisoes, &c., as were or should be expressed by the in- 
denture of 18th March, 1815, next stated). 

By indentures of lease and release dated respectively the 17th and 
18th days of March, 1815, the release being made between the said 
John Tarleton and Isabella his wife and the said John Gollingwood 
Tarleton of the first part, the said John Tarleton of the second part,' 
William Richard Cosway and Edward Thurlow of the third part, and 
Edwa/d- Houghton and William Ainge of the fourth part, after reciting 
the said indenture of bargain and sale of even date with the now stat- 
ing indenture, and reciting that the said John Tarleton, Isabella his 
wife, and John Gollingwood Tarleton, were severally desirous *of rmoq^ 
declaring the uses of the said undivided moiety intended to be '- 
comprised in and conveyed by the aforesaid indenture of bargain and 
sale and the said common recovery to be suffered in pursuance thereof 
as aforesaid, and that the said John Tarleton was desirous of convey- 
ing, settling, and assuring the said hereditaments of or to which. he was 
seised or entitled for an estate of inheritance in fee simple to the uses 
and upon the trusts thereinafter expressed and declared of and concern- 
ing the same premises respectively. It was witnessed that, for effectu- 
ating such intent and purpose as aforesaid, and for divers other good 
and valuable causes and considerations, and for the nominal considera- 
tion therein mentioned, he the said John Tarleton did grant, bargain, 
sell, alien, release, and confirm unto the said W. R. Cosway and E. 
Thurlow, and their heirs, all that the said undivided moiety or equal 
half part or share of him the said John Tarleton of and in the said 
Gollingwood estates and hereditaments, and also the entiretjpf the said 
Ingram estates and hereditaments. To hold the same unto the said W. 
R. Cosway and E. Thurlow, their heirs and assigns, to the uses and 
upon the trusts thereinafter expressed and declared of and concerning 
the same : and it was further expressed, agreed, and declared, by and 
between the said parties thereto, that the said undivided moiety of the 
said Collingwood estate, and hereditaments comprised in and conveyed 
by the aforesaid indenture of bargain and sale of even date therewith 
should be and remain, and that the same bargain and sale and the said 
recovery to be suffered as aforesaid should operate and enure, and also 
that the grant and release thereinbefore contained should severally 
operate and enure, to the uses and npon the trusts thereinafter 



^expressed and declared of and concerning the same premises 



[♦896 



respectively, vis. : As to the said undivided moiety of the said Colling- 



895 TARLETON t;. LIDDELL. T. T. 1851 

wood estates comprised in and intended to be conveyed by the aforeBaid 
indenture of bargain and sale and recovery to be suffered in pnrsnance 
thereof as aforesaid. To the use of the said John Collingwood Tarleton 
and his heirs during the life of the said John Tarleton for the onlj 
proper use and benefit of him the said J. C. Tarleton and bis heirs, 
with remainder to the use of.the said Isabella Tarleton and her assigns 
for life without impeachment of waste : And as to the said undivided 
moiety of the said Collingwood estates comprised in the said indentore 
of bargain and sale, from and after the determination, and subject to 
the uses and trusts thereinbefore declared thereof, and also as to the 
other undivided moiety of the same estates and as to the entirety of the 
said Ingram estates, from and immediately after the execution of the 
now stating indenture. To the use of the said J. G. Tarleton and hia 
assigns for his life without impeachment of waste ; with remainder to 
the use of the said W. R. Cosway and E. Thurlow and their heirs dur- 
ing the life of the said J. G. Tarleton, in trust to preserve contingent 
remainders ; with remainder to the use of the first and other sons of 
the said J. G. Tarleton successively in tail male ; with remainder to the 
use of Edward Thomas Tarleton, the younger son of the said John Tarle- 
ton, and his assigns, for his life, without impeachment of waste ; with 
remainder (to trustees, as before, during the life of Edward Thomas 
Tarleton, to preserve contingent remainders); with remainder to the 
use of the first and other sons of the said Edward Thomas Tarleton 
successively in tail male ; with remainder to the use of the first and 
*^QfiT ^*^®^ ^^^^ thereafter *to be born to the said John Tarleton by 
^ the said Isabella his then present or any future wife successivelj 
in tail male ; with remainder to the use of Margaret Anne Tarleton, 
spinster, the only daughter of the said John Tarleton, and her assigns 
for her life without impeachment of waste ; with remainder (to trustees, 
as before, during the life of Margaret Anne Tarleton to preserve con- 
tingent remainders) ; with remainder to the use of the first and other 
sons of tVsaid Margaret Anne Tarleton successively in tail male ; with 
remainder to the use of the first and other daughters thereafter to be 
born to the said John Tarleton by the said Isabella or any future wife, 
successively in tail male ; with remainder to the use of the first and 
other sons of the body of the said John Gollingwood Tarleton succes- 
sively in tail general ; with remainder to the use of the first and other 
sons thereafter to be born of the body of the said John Tarleton by his 
said present or any future taken wife, successively in tail general ; with 
remainder to the use of the first and other sons of the body of the said 
Margaret Anne Tarleton successively in tail general ; with remainder 
to the use of the first and other daughters to be bom of the body of the 
said John Tarleton by his then or any after taken wife, successively in 
tail general ; with remainder to the use of the said John Tarleton, his 
heirs and assigns for ever. ^ « 



17 ADOLPHUS & ELLIS. N. S. 896 

A recovery was suffered of the said moiety of the said Gollingwood 
estates comprised in the said settlement of the SOth day of September, 
1790 (Easter term 55 G. S) ; and therein the said R. Blake was de- 
mandant, the said W. Ainge tenant, and the said Isabella Tarleton and 
J. C. Tarleton were voachees^who vouched over the common vouchee. 

*The said John Tarleton was, in and previously to the month of ri„QQY 
March, 1815, and at the time of the execution of the said several ^ 
indentures of bargain and sale of the 18th March, 1815, and indentures 
of lease and release of the 17th and 18th March, 1815, indebted to 
various persons, and a trader subject to the bankrupt laws : and the said 
several indentures bearing date the 17th and 18th March, 1815, were 
made and executed; and the said common recovery was suffered, with 
the intent on the part of the said John Tarleton thereby to delay, hin- 
der, and defraud the creditors of the said John Tarleton in their lawful 
actions against him, and in the recovery of their debts from him : but 
the said John Gollingwood Tarleton was not party or privy to such 
intent, but believed and supposed that the said deeds were intended for 
another and different object, and not for the purpose of defeating oi 
delaying the creditors of the said John Tarleton. 

The case then stated that a commission of bankrupt, under the Great 
Seal, dated 22d June, 1815, was issued against John Tarleton, directed, 
kc.j and that, under such commission, John Tarleton was duly found 
and declared a bankrupt; and certain assignees were' appointed, to 
whom the commissioners assigned (on July 11th, 1816) all the lands, 
tenements, and hereditaments, &c., whereof John Tarleton at the time 
he became bankrupt, or since, had any estate, right, title, or interest, 
habendum to the use of the assignees, their heirs and assigns, subject 
to mortgages, charges, &c., if any, in trust, &c. (for themselves and all 
other the creditors of J. T. seeking relief under the commission). 

The case then stated that the assignees (one of those first named 
having died and another being substituted) filed *their bill^f r^cqq^ 
complaint in the High Court of Chancery against the said John ^ 
Gollingwood Tarleton and the said John Tarleton and Isabella his wife, 
Edward Thomas Tarleton, Margaret Anne Tarleton (then out of the ju- 
risdiction of the Court), William Ainge, Robert Blake, William Richard 
Cosway (then out of the jurisdiction of the Court), Edward Thurlow, 
Edward Houghton, and Edward Falkner, as defendants thereto, in order 
to set aside the said several deeds of the 17th and 18th days of March, 
1815, and the said common recovery, as void against the creditors of 
the said John Tarleton. And, by the decree made on the hearing of 
the said cause on the 2d day of July, 1819, by the then Master of the' 
Rolls, it was, among other things, ordered that the parties should pro- 
ceed to a trial at law in His Majesty's Court of King's Bench, at the 
next assizes to be holden in and for the county palatine of Lancaster, 
on one or more issue or issues to try the validity of the said indenture 
VOL. XVII. — 88 Y 2 



898 TARLETON i^. LIDDELL. T. T. 1851. 

of bargain and sale bearing date the 18th day of March, 1815, and tbc 
said recovery suffered in pnrsuance thereof, and also of the said inden- 
tares of lease and release dated respectively the 17th and 18th days of 
the said month of March, 1815 : in vrhich said issue or issues the said 
James Barnes, John Hornby, and Benjamin Rolfe (J. Tarleton's assign- 
ees) were to be plaintiffs, and the said J. C. Tarleton, W. Ainge, B. 
Blake, E. Thurlow, E. Houghton, and E. Falkner were to be defendants. 

In pursuance of the said decree, the said parties proceeded to a tritl 
of the said issue at the Summer assizes for the County Palatine of 
Lancaster in the year 1819 ; when the jury impannelled to try snch 
*^QQ1 ^^^^^ found that the said several deeds, conveyances, *and reco- 
^ very were, and each of th^m was, void and fraudulent in the law 
as against the creditors of the said John Tarleton. 

The said cause came on to be heard again before the Master of the 
Rolls on the 16th day of December, 1819 ; when it was decreed that 
the said indenture of bargain and sale dated the 18th day of March, 
1815, and the recovery suffered in pursuance thereof, and also the said 
indentures of lease and release dated respectively the 17th and 18th 
days of March, 1815, were fraudulent and void as against the creditors 
of the said John Tarleton the bankrupt, and the plaintiffs in the said 
cause as the assignees of his estate and effects, and that the said plain- 
tiffs were entitled to have possession of the premises comprised in the 
said several indentures delivered up to them. A further order was 
made in the said cause on the 12th day of March, 1821, whereby it 
was ordered that the said several indentures should be delivered up to 
the said assignees to be cancelled. The said several indentures were, 
in pursuance of the said order, delivered up to the said assignees, and 
were cancelled. 

The said assignees of the said John Tarleton subsequently, with the 
consent of the Lord Chancellor sitting in bankruptcy, agreed to ^ell 
their interest in the said Collingwood estates to the said John Colling- 
wood Tarleton for the sum of S0,000{., which was paid to them by the 
said J. C. Tarleton. 

By indentures of lease and release dated the 5th and 6th days of 
July, 1821, the release being made between the said J. Hornby, &e. 
(the assignees), of the first part, the said J. C. Tarleton of the second 
*4001 P*^*' ^^^ ®*^^ William Ainge of the third part, and *Edgar 
-* Taylor of the fourth part : It was witnessed that, for barring 
and destroying all estates tail and all remainders and reversions 
thereupon expectant or depending of and in the moiety or half part 
or share thereby released of and in the hereditaments thereinafter 
described, and for limiting and settling the said moiety or half part or 
share in the manner thereinafter mentioned, and for the nominal con- 
sideration therein mentioned, they the said, &c. (the assignees), at the 
request and by the direction and for the accommodation of the said 



17 ADOLPHUS k ELLIS. N. S. 400 

John Collingwood Tarleton, testified bj his being a party to and exe- 
cuting the now stating indenture, did, and each of them did, bargain, 
sell, alien, release, and confirm, and the said J. C. Tarleton did grant, 
bargain, sell, alien, release, and confirm, unto the said William Ainge 
and to his heirs and assigns, during the life of the said John Tarleton, 
the said moiety of the said Collingwood estates comprised in the said 
indenture of settlement of the SOth day of September, 1790 ; To hold 
the same unto the said William Ainge and his heirs during the life of 
the said John Tarleton to the use of the said W. Ainge and his heirs 
and assigns during the life of the said John Tarleton, to the intent 
that the said W. Ainge might become perfect tenant of the freehold of 
the said undivided moiety or half part or share of and in the said here- 
ditaments, against whom one or more gopd and common recovery or 
common recoveries might be had and suffered thereof in such manner 
as thereinafter mentioned : and it was thereby declared that the said 
common recovery and all other common recoveries, fine and fines, should 
be and enure to the use of the said J. Hornby, &c. (the assignees), their 
heirs and ^assigns, during the natural life of the said John r-n^Ar^^ 
Tarleton the father, and, from and after the decease of the said '- 
J. Tarleton the father, to the use of the said J. C. Tarleton, his heirs 
and assigns for ever and to and for no other use, intent, or purpose 
whatsoever ; and it was thereby declared, &c. (declaration that, if J. 
C. Tarleton, his heirs, executors, &c., should not pay the assignees, or 
their assigns, the sum of 80,0002. on or before 6th of January then 
next, the release or other assurance by those presents made by the 
assignees should determine and be void, and it should be lawful for 
them to enter upon and hold the said undivided moiety thereby released, 
in their former estate). 

In pursuance of the said indenture, a recovery was suffered (Trinity 
term 2 G. 4), wherein the said Edgar Taylor was demandant, the said 
William Ainge tenant, and the said John Collingwood Tarleton vouchee, 
who vouched over the common vouchee, of the said moiety olT the said 
Collingwood estates and hereditaments. 

By indentures of lease and release dated respectively the 6th and 
7th days of March, 1828, the release being made between the said J. 
Barnes, &c. (the assignees), of the first part, Ambrose Lace of the 
second part, and the said John Collingwood Tarleton of the third part, 
reciting that the said J. Barnes, &c. (with the consent and approbation 
of the creditors of the said John Tarleton duly convened for that pur- 
pose) contracted and agreed with the said J. C. Tarleton for the abso- 
lute sale to him the said J. C. Tarleton, at the clear price and sum of 
80,0002., of the said life estate of the said John Tarleton, in one 
moiety and the fee simple in possession of the other moiety, of the said 
Collingwood estates, and all other the estate, right, title, or interest 



402 TARLBTON v. LIDDELL, T. T. 1861. 

*dn9l *^^ ^'™ ^^^ ^^^ John Tarleton in or to the same : It was wit- 
-^ nessed that, in parsnance of the said agreement, and in eonsi- 
der9.tion of 80,0002., paid by the said J. C. Tarleton to the said J. 
Barnes, &c. (the assignees), they the said J. Barnes, fcc, did, and each 
of them did, bargain, sell, alien, release, and confirm nnto the Ud J. 
C. Tarleton *and to his heirs and assigns, for and daring the natural 
life of the said John Tarleton, all that undiyided moiety in and by the 
said indenture of settlement of the 80th day of September, 1790, 
granted and conveyed of and in the said Gollingwood estates, to hold 
the same anto and to the ase of the said J. 0. Tarleton, his heirs and 
assigns, for and during the life of the said John Tarleton : and it was 
farther witnessed that, in farther parsnance of the said agreement, and 
for the considerations aforesaid, the said J. Barnes, &c. (the assignees) 
did bargain, sell, alien, release, and confirm unto the aaid J. C. Tarle 
ton and to his heirs and assigns, all that the other undivided moietj 
of the same estates, to hold the same unto the said J. C. Tarleton and 
his heirs to the use of the said J. C. Tarleton, his heirs and assigns ab- 
solutely and for ever. 

The said John Tarleton and Isabella his wife died before the year 
1843. 

The said John Gollingwood Tarleton has lately sold the fee simple 
and inheritance of the entirety of the said Gollingwood estates to the 
said defendant Henry Thomas Liddell for a large sum of money, which 
has been paid to him by the said Henry Thomas Liddell: and, by 
indentures duly executed, and dated the Ist day of April, 1849, and 
made between the said J. G. Tarleton of the one part and the said H. 
T. Liddell of the other part, *the said J. G. Tarleton, in consi- 
deration of such sum of money, has conveyed and assured the 
entirety of the said Gollingwood estates unto and to the use of the said 
H. T. Liddell, his heirs and assigns for ever. 

All the property of the said John Tarleton has been got in and dis- 
posed of under his bankruptcy : and the proceeds thereof have been 
applied in payment of his debts proved under the said bankruptcy, and 
have been insufficient for the payment of such debts in full. 

The plaintiff Banastre Tarleton is the eldest son of the said John 
Gollingwood Tarleton. 

Either of the parties is at liberty to refer to any of the deeds 0€ 
documents stated in this case, which are to be considered as thongh 
they bad been set forth at full length. 

The question for the opinion of the Gourt is, Whether the plaintif 
Banastre Tarleton has any and what estate or interest in the moiety 
of the said Gollingwood estates comprised in the said indenture of 
settlement of the 30th day of September, 1790. « 

The case was argued in last term.(a) 

(a) April 25th. Before Lord Ckmpbell, 0. J., Paiteeon, Wightnuui, and Brie^ Jt. 



*403] 



17 AD0LPHD8 & BLLIS. N. 8. 408 

Peaeoeky for the plaintiff. — ^First. The conveyance by John Tarle- 
ton of 17th and 18th March, 1815, was not void as against creditors 
within Stat. 18 Eliz. c. 5. J. C. Tarleton, the son, gave up his estate 
tail in the settled moiety of the Gollingwood estates, and acquired, in 
retarn,ti8 father's life estate in that moiety, together with a life estate 
to himself in all the estates. The transaction was a purchase by the 
father of part of his son's estate under the settlement for a considera- 
tion; the adequacy *of the consideration cannot be measured; r^^^/^j^ 
it vas not merely colourable, and is sufficient as against credi- ^ 
tors ; Roe dem. Hamerfon v, Mitton, 2 Wils. 856. The son was not 
cognisant of his father's debts when he executed the deeds. [Lord 
Oampbbll, C. J. — Were not these matters decided by the equity suit 
and action at law ?] J. 0. Tarleton was no party to those. If the 
eonveyance here had been a bill of sale of goods, it would have been 
Taiid, as having consideration to support it, though there was an Inten- 
tion to defeat creditors ; Holbird v. Anderson, 5 T. R. 285, Pickstock . 
V. Lyster, 8 M. & S. 871 (E. C. L. R. vol. 80), Wood v. Dixie, 7 Q. B. 
892 (E. G. L. R. vol. 58). No distinction can be drawn on this point, 
between real estate and chattels : and goods transferred by bill of sale 
conld not be recovered back merely because the vendor had sold them 
knowing that he should become bankrupt, and had spent the money. 
[Lord Campbell, C. J. — However small the consideration for the sale ?] 
Unless it were so small as to prove collusion with the purchaser, that 
would make no difference. Here, collusion on the part of J. C. Tarle- 
ton is negatived. It is true that the creditors gain no benefit : but 
that would equally have been the case if the consideration had been 
marriage. [Lord Campbell, C. J. — They not only gain nothing, but 
tbey lose the Ingram estates and the unsettled half of the CoUingwood 
estates. And the father, John Tarleton, obtains no real quid pro quo.] 
He gets a resettlement of his estate. [Lord Campbell, C. J. — Only 
a change in his own marriage settlement, leaving the uses not essen- 
tially altered.] Even the surrender by J. C. Tarleton of his own estate 
tail is a consideration as against creditors. [Lord Campbell, C. J. — 
He probably thought he *was bettering his own position. Pat- r^^/v^ 
TESoy, J. — If this conveyance was void against creditors, it is ^ 
void against the purchasers from J. C. Tarleton. You are seeking to 
npset all the proceedings which have taken place in the twenty-one 
years since the decree in Chancery. Lord Campbell, C. J. — Did the 
Vice Chancellor, in sending this case, intend us to consider whether the 
decree in Chancery was void ? Unless he wished it, I think we ought 
not. W. T. S. Daniel, with Peacoeky stated, that the objection, before 
the Vice Chancellor, was to the plaintiff's title generally, and that the 
ease was not^stated with a view to any one question in particular, though 
the principal dispute was, supposing the conveyance to have been void 
as against creditors, what the consequence would be. J. V. Priory 



405 TARLETON v. LIDDELL. T. T. 1851. 



with Cfromptofij contrd., said that the case had not been fully argued 
when referred to this Court by the Vice Chancellor.] The plaiotiff is 
entitled to contend that the view on which the decree of 1819 was 
grounded is incorrect. [Patteson, J. — Your argument suggests a 
very easy mode of defrauding creditors, by conveying a man's life 
estate to his son, the son being ignorant of the design. Lord Camp- 
bell, C. J. — And the conveyance being made on tfny consideration, 
however slight.] 

Secondly, assuming the father's deed to have been ineSectnal as 
against his creditors, the recovery operated, as against them, to all the 
uses except those which affected the estate of the father : that is to say, 
his life estate would be subject to the claim of his creditors, but the 
recovery would take effect to the uses declared by J. C. Tarleton, and 
the remainders limited by his deed would be valid under stat. 13 Eliz. 
c. 6, 's. 4, which is introduced expressly to protect recoveries. 
*40fil *Otherwise, if a recovery were suffered under circumstances lie 

^ the present, the son wishing to cut off the estate tail, and joining 
in the recovery for that purpose, the creditors might prevent the son 
from taking the fee. The recovery here was valid in law : the convey- 
ance is void by the statute^ as against the creditors only. An elegit 
sued out by them could have operated only on John Tarleton's estate: 
it could not have affected the estate tail limited to the son. Nor coold 
the cancellation of the deed devest that estate. The decision in the 
equity suit, to which the now plaintiff was no party, cannot bind him 
here ; Nathans v. Giles, 5 Taunt. 558 (E. C. L. R. vol. 1). But, sup- 
posing the recovery void, still the grandson, the now plaintiff, has the 
estate tail. His father, J. C. Tarleton, was tenant in tail, and might, 
by bis deed of 1815, convey a base fee, subject to be devested by entry 
of the issue in tail; Machell v. Clarke, 2 Ld. Ray. 778; Doe dem. 
Daniel v. Woodroffe, 2 Ho. Lords Ca. 811.(a) And, here, the issue in 
tail does not enter, but is the very person who takes the estate taS 
through J. C. Tarleton under this conveyance. [Patteson, J. — If there 
has been no valid recovery, he will be in by remitter, and not under his 
father's deed.] The remitter, at any rate, does not take effect during 
J. C. Tarleton's life. And, whether the plaintiff be remitted, or m of 
a new estate, he is, at all events, in by a legal title. 

Thirdly, the question is, whether the settlement of 1815 is void as 
against a subsequent purchaser from J. C. Tarleton, by stat. 27 Eliz. 
♦4071 ^' ^' ^ conveyance, to *be void under that Act, must be purely 

^ and entirely voluntary, and must have that character at the time 
when it is executed. If there was any consideration, it is not voluntary 
within the statute : and this is consistent with the law laid down in Doe 

(a) Affirming the jadgment of the Ezeheqaer Chamber in Woodroffe o. Do^dem. DaoielU 1$ 
M. A W. 769,t which reversed (in part only) the judgment of the Court of Excheqoer in Po* 
dem. Daniell v. Woodroffe, 10 M. A W. tfOS.f 



17 ADOLPHUS & ELLIS. N. S. 407 

dem. Otlev v. Manning, 9 East, 59. Now, in the present case, when 
the conveyance of 1815 was executed, there was clearly some considera- 
tion to the son, J. C. Tarleton, who is expressly found to have been 
anacqaainted with the fraud. There would have been no question as to 
this if. John Tarleton had not had creditors. It would be very dangerous 
to hold, upon strict views as to consideration, that a resettlement of 
estates between fether and son was void against subsequent purchasers 
from the son. Almost every resettlement of this kind might be found 
voluntary, if the question were raised. Assuming that there was con- 
sideration at the time of the conveyance, it is not vitiated by a failure 
of the consideration afterwards ; as by eviction. And, supposing that 
the recovery was originally good, J. G. Tarleton could not defeat it by 
his own subsequent sale. He himself could not have disturbed the re- 
settlement : can he place a purchaser in a better situation than his own ? 
[Erlb, J. — The question is, whether John Tarleton received a good bon& 
fide consideration for the conveyance made to J. C. Tarleton in 1815 ; 
it being found that that conveyance was voluntarily made, for the pur- 
pose of defeating creditors.] 

Cfromptonj contr^ was stopped by the Court as to the first point.-^ 
As to the second : Supposing Liddell, the subsequent purchaser, to be 
oat of the question, no ^estate could pass to the plaintiff under r-ntAOQ 
the conveyance of 1815, which has been expressly found by ver- *■ 
diet to be fraudulent on the part of John Tarleton, and declared void 
on that ground by a decree, which was followed n^ by an •order for 
cancelling the indentures. Had any estate passed hj the deeds, the 
Master of the Rolls would have directed a reconveyance, not a can- 
cellation. But, supposing that some estate (as a base fee) passed at 
the time of conveyance, yet, the conveyance being without considera- 
tion and so fraudulent within stat. 13 Eliz. c. 5, it becomes void when 
the creditors come in to impeach it, and is so for all purposes, and as 
to all persons ; the law then considers that there was not a good estate 
at any time, even before the creditors interfered. The same principle 
was recognised in the case of sale of a chattel, when the sale was 
avoided by reason of fraud, in Murray v, Mann, 2 Exch. 538, 541. f 
[Erls, J., mentioned sect. 4 of stat. 13 Eliz. c. 5.] That is designed 
to protect tenants in tail, who have an interest in the entail being cut 
off; not to qualify the operation of the Act, as to persons under mer- 
cantile liabilities. This Court has held, where a lease was expressly 
surrendered in consideration of having a new lease, and the new lease 
proved to be a bad execution of a power, that the surrender was inope- 
rative ; and this although the new lease was not absolutely void but 
voidable only ; Doe dem. Earl of Egrcmont v. Courtenay, 11 Q. B. 702 
(E. C. L. R. vol. 68). And, as to the supposition of a base fee passing, 
it is said in Roe dem. Earl of Berkeley v. Archbishop of York, 6 East, 
86, 106 (referred to in the last cited case) : «< There is no case or au- 



408 TABLETON v. LIDDELL. T. T. 1851. 



*- 



409] 



thority which says, that if a conveyance '''cannot operate <b the 
way intended, to pass the estate intended, that it shall operate in 
another way to pass an estate, which was not intended, and not within 
the contemplation of the parties. « And thobgh the manner of passing 
an estate is not to be regarded ;' yet, « the intent is to be regarded, 
what I estate is to pass, and to whom V And so it is laid down by Lord 
C. J. Willes, in his Report, 687.(a)" Onions v. Tyrer, 1 P. Wms. 343, 
as to the effect of a will intended to revoke a prior will and substitute 
new provisions, bat imperfectly executed, bears some analogy to this 
case. It being, then, impossible, in the. present case, that the uses 
could take effect as intended, the conveyance effects nothing. At 
most assuming that something passed, the uses would result back. 

As to the third point : Doe dem. Otley v. Manning, 9 East, 59, folly 
recognises the doctrine, laid down in Lord Townshend v. Windham, 
2 Yes. Sen. 1, 10, that under stat. 27 Eliz. c. 4, every voluntary con- 
veyance is void, where there is a subsequent conveyance for value, 
even though there be << no fraud in that voluntary conveyance, nor the 
person making it at all indebted.*' It makes no difference that the 
purchaser knew of the fradulent conveyance ; Gooch's Case, 5 Rep. 60 a. 
In Roe dem. Hamerton v. Mitton, 2 Wils. 356, there was abundant 
consideration. The present case does not at all resemble those of 
conveyances by way of marriage settlement : but, even in those, the 
conveyance has not been held good as against subsequent purchasers, 
where it did not carry out the bargain upon which the settlement was 
based, but did something which the conveying party was not bound to 
*4101 ^^ ' ^^® *dem. Barnes v. Rowe, 4 New Ca. 787 (E. C. L. R. vol/ 
^ 33) ; though he probably acte4 in the belief that he was fulfilling 
an obligation. And, in a marriage settlement, a remainder to the settIor*8 
brother has been held void under the statute, as against a purchaser ; 
Johnson v. Legard, 6 M. & S. 60 ; though a limitation in such a settle- 
ment to the issue which the settlor might have by a future marriage, had 
been held valid in Clayton v. Earl of Wilton, 6 M. k S. 67, note. Alimi- 
lation in a marriage settlement of an estate, the property of the wife, to 
her brothers and sisters, was held void under the statute, in Gotterell v. 
Homer, 13 Sim. 506. The distinctions are nice ; but the principle is that 
the settlement, to prevail against the statute, must be grounded upon some 
consideration beneficial to the settlor, and not merely on the desire of 
benefiting or assisting the person in whose favour the provision is made. 
The concurrence of such person (being a necessary party) in the settle- 
ment is not sufficient, unless such concurrence was made matter of bar- 
gain with the settlor ; Doe dem. Baverstock v. Rolfe, 8 A. ft E. 650, 
672 (E. C. L. R. vol. 35), where Goodright dem. Humphreys v. Moses, 
2 W. Bl. 1019, and other cases are cited. To create a valuable con- 
sideration, the party joining must relinquish something, and not vir- 

(a) Roe dem. Wilkinaon o. Traomarr, WiUeB, 682, 



17 ADOLPHUS & ELLIS. N. S. 410 

tuailj take hack all he gave ; Ruasel v. Hammond, 1 Atk. 18, 16 ; which, 
with Ooodright dem. Humphreys v. Moses, is commented upon in 
Boberts on Fraudulent Conveyances, pp. 271 — 274. 

Peacock^ in reply. — ^No decision has laid it down that, in a case of 
fflatnal convevances, a defect in the title on one side, by which the title 
is sabsequently prejudiced, ^annuls the conveyance on the other, r^,^^^ 
The case is diffei^nt from that of exchanges. The decision in ^ 
Doe dem. Earl of Egremont v. Gourtenay, 11 Q. B. 702 (E. G. L. R. 
roL 63), applies strictly to the case of lease and surrender : if nothing 
was really taken out of the reversion in granting the supposed new lease, 
the old lease was not merged. Doe dem. Baverstock v. Rolfe, 8 A. & 
E. 650 (E. G. L. R. vol. 85), decided only that a settlement, otherwise 
Tolantary, was not made valid by the concurrence of certain parties. 
Goodright dem. Humphreys v. Moses, 2 W. Bl. 1019, was simply a 
case of no consideration, and not at all similar to the present. The Court 
will not extend the doctrine of voluntary conveyance, farther than it 
WAS carried in Doe dem. Otley v. Manning, 9 East, 59. If the present 
transaction is invalidated, it is so simply by the statutory provision of 
13 Eliz. c. 5, and not by relation to any other act done, as in bank- 
ruptcy. Supposing the bankrupt laws out of the question, John Tarle- 
ton, if he had not conveyed, would have been entitled to the rents 
and profits of the estate till the creditors sued out an elegit ; and then 
he could not have been called upon to refund what he had taken. A 
person to whom he conveys, is in the same situation. The transaction 
is not affected, under the statute of Elizabeth, by relation back to any 
other act, as in bankruptcy. And, supposing that« the conveyance of 
1815 were in question as an act of bankruptcy, no such relation is 
established ; since nothing appears as to the debt of the petitioning 
creditor, from whom the other creditors, and the assignees, derive their 
rights under the commission ; Tope v. Hockin, 7 B. & G. 101 (E. G. L. 
B. vol. 14). Our. adv. vuU. 

*Lord Gampbbll, G. J., now delivered the judgment of the rit^Aiq* 
Court. ^ 

The question in this case beingi whether the plaintiff, Banastre Tarle. 
ton, an infant, had any estate or interest in certain estates comprised 
in an indenture of settlement of the 80th of Sept^ber, 1790, of which 
estates a common recovery was suffered in Easter term, 1815, it is 
material to see who were the parties living and interested in the estates ' 
at the time of that recovery. 

John Tarleton, the grandfather of the plaintiff (then a trader within 
the bankrupt laws), was tenant for life, with remainder to his wife 
Isabella for life, with remainder to his son John GoUingwood Tarleton 
(the father of the now plaintiff) in tail male, with remainder to the 
younger son of John and Isabella Tarleton, viz., Edward Thomas 
Tarleton, in tail male, with remainder to Margaret Anne Tarleton, tho 
VOL. XVII.— 34 Z 



412 TARLETON t;. LIDDELL. T. T. 1851. 

• 

daughter of John and Isabella Tarleton, in tail general, with remainder 
to Alexander Gollingwood (the original settlor) in fee. John Colling- 
wood Tarleton had attained twenty-one years of age in 1815, but wm 
not married till many years afterwards. 

An indenture of bargain and sale, dated 18th March, 1815, was exe- 
cuted, by which John Tarleton, Isabella his wife, and J. C. Tarleton, 
joined in making William Ainge a tenant to the praecipe for the purpose ' 
of suffering a common recovery in which Robert Blake should be demand- 
ant, to such uses as should be expressed in another* indenture of the 
same date. That recovery was suffered, in which Isabella Tarleton and 
J. G. Tarleton were vouchees, who vouched over the common vouchee. 
It is plain that there were proper parties to this recovery, and it was 
^.^ 0-1 in all respects ^regular. By indenture of lease and release of 
^ the 17th and 18th March, 1815, John Tarleton and Isabella his 
wife and J. C. Tarleton being parties to the release, the uses of the 
recovery were declared to be to J. G. Tarleton and his heirs during the 
life of John. Tarleton for his own proper benefit, with remainder to 
Isabella Tarlelon for life, with remainder to J. G. Tarleton for life, with 
remainder to his first and other sons in tail male, with remainder to 
Edward Thomas Tarleton for life, with remainder to his first and other 
sons in tail male, with remainder to Margaret Anne Tarleton for life, 
with remainder to her first and other sons in tail male, with sundry 
other remainders to unborn children ; and with the ultimate remainder 
to John Tarleton in fee. By the same indentures other estates of which 
John Tarleton was seised in fee were conveyed by him to the same 
uses, except that J. jC* Tarleton was to take an immediate estate for his 
life in them. 

John Tarleton was at the time insolvent, and knew that he was so; 
and all this was done by him for the purpose of defrauding his creditors; 
but J. G. Tarleton was ignorant of the insolvency and of the intended 
fraud. 

John Tarleton soon afterwards, on the 22d June, 1815, became bank- 
rupt; and, on the 11th July, 1816, the usual conveyance of all 'his 
estates and property was made to his assignees on their petition. The 
Gourt of Ghancery, on the 2d July, 1819. directed an issue at law to 
try whether the deedsland recovery were fraudulent and void in law as 
against the creditors of John Tarleton. The issue was tried ; and the 
jury found that they were fraudulent and void as against the creditors. 
After this finding, the Gourt of Ghancery, on the 16th December, 
*4141 *^^^^> decreed that the deeds of recovery were fraudulent and 
-^ void as against the creditors, and that the assignees were entitled 
to possession, and, on the 12th March, 1821, further ordered that the 
deeds should be delivered up to the assignees to be cancelled, which was 
done accordingly. The decree does not profess to reverse the recovery 
or to set it aside ; nor indeed had the Gourt any power or jurisdiction 



17 ADOLPHUS & ELLIS. N. S. 414 

to do either one or the other ; but the Court ordered the deeds to be 
cancelled, which they clearly had jurisdiction to do : and, if by that 
decree and order the deeds of 17th and 18th March to lead the uses of 
the recovery become wHolly inoperative, the present plaintiff cannot 
bave any interest in the estates, because it is only by the release giving 
J. C. Tarleton an estate for life only, with remainder to his first son in 
* tail male, that the plaintiff can found any claim. 

It was contended for the plaintiff that the proceedings in Chancery 
were altogether wrong : that the deeds of 17th and 18th March, 1815, 
were executed on good considerations and valid in law : but, no consi- 
deration given to J. C. Tarleton for extinguishing his estate tail in 
remainder and taking back only an estate for life was shown, except 
that of having his father J. Tarleton's estate for life in the settled pro- 
perty, and also an estate for his own life in the unsettled property, 
conveyed to him. That conveyance being clearly fraudulent and void 
within statr 13 Eliz. c. 5, nothing whatever passed to J. C. Tarleton by 
the deeds ; and, the consideration having utte/ly failed, not by matter 
ex post facto, but by reason of the original fraud in J. Tarleton the 
father, nothing in his estates ever passed to his son ; and the case 
stands the same as if there had never been any consideration or pro- 
fessed consideration whatever. The *case of Roe dem. Hamerton p^ . . . 
V. Mitton, 2 Wils. 856, which was relied on by the plaintiff's ^ 
coansel, is wholly different from the present ; for there the party con<« 
veying and settling the land did take a benefit, and had a good consi- 
deration, in having part of his lands, of which he was seised in fee, 
discharged from an annuity. We are therefore clearly of opinion that 
the proceedings in Chancery were quite right. The only question is, 
what is the effect of them with regard to the estate of J. C. Tarleton in 
which the assignees of his father John Tarleton had no interest. 

The 4th section of stat. 13 Eliz. c. 5, was relied on as showing that 
a recovery, though fraudulent within that statute, would stand good as 
to other parties, and therefore that, as J. C. Tarleton was no party to 
aity fraud, it would stand good as to him, and enure to the uses which 
he had declared by his deed. Now the words of that section, when 
examined, clearly show that it applies only to persons who are not par- 
ties to the recovery, but have estates in remaiider or reversion subse- 
quent to and expectant on the estates of those who are parties to the 
recovery. This section speaks of recoveries had << against tenant iu^ 
tail, or other tenant of the freehold, the reversion or remainder^ or the 
right of revereion or remainder j then being in any otJier person or per- 
sons ;" and enacts that every such recovery << shall as touching such 
person and persons which tJien had any remainder or reversion" <« stand, 
remain, and be of such like force and effect, and of none other" as if this 
Act bad never been made. It is plain that the persons here spoken of 



415 TARLETON v. LIDDELL. T. T. 1861. 

*dlftl ^^^ ^^^ those against whom the recovery is *had. No doubt at 
^ all can exist as to the meaning, supposing a recovery to be suf- 
fered by tenant in tail in possession ; nor can it make any difference 
that in this case the tenancy in tail was in remainder ; for the recoTery 
is had not only against the immediate tenant to the praecipe but against 
the vouchee. The meaning of ihe clause evidently is that, although 
the uses of a fraudulent recovery shall not prevail to defraud creditors, 
yet that the recovery shall stand good to bar those in remainder or 
reversion, as if there had been no fraud. J. G. Tarleton is not a person 
having a remainder or reversion within the meaning of the section of 
the statute ; and therefore nothing that he has done in regard to the 
f ecovery can be affected by it : and the now plaintiff was not such a 
person ; for he was not born till many years afterwards. But Edward 
Thomas Tarleton (the younger brother of J. G. Tarleton), *and Margaret 
Anne Tarleton his sister, and Alexander GoUingwood the original set- 
tlor, may be said to have been persons having a remainder or reversion : 
and therefore as regards them the recovery may stand good and in 
force under that section of the statute. It would however only stand 
good as a recovery eimply^ so as to bar their estates, wholly independent 
. of the question as to the operation of the deed to lead the uses. 

Now, if that deed, namely the release of 18th March, 1815, be wholly 
vitiated and done away with by the fraud of John Tarleton, it will fol- 
low that the now plaintiff has no interest in the lands. The recovery 
will then stand as a recovery simply without any deed to lead or declare 
the uses. In such a case, though it was originally held that it should 
♦1171 ®^^^® ^^ ^^^ ^"^ Ti&eSy ♦Argol V. Gheney, Latch. 82, Wakertf. 
^ Snowe, Palm. 859, and so J. G. Tarleton would remain tenant in 
tail male, yet subsequent cases show that the recovery would enure to 
give the fee simple to tenant in tail ; Nightingale v. Earl Ferrers, 3 P. 
Wms. 206 ; Stapilton v. Stapilton, 1 Atk. 2 ; Roberts's Gase, 3 Atk. 
808, 813 ; Martin dem. Tregonwell v. Strachan, 5 T. R. 107, note. 

In either way the plaintiff would have no interest ; for, if J. C. Tar- 
leton remained tenant in tail, he plainly acquired the fee simple by a 
subsequent recovery suffered by him in Trinity term, 1822. His father's 
assignees, who were then tenants for the life of the father John Tarle- 
ton, joining in making* tenant to the praecipe, by deeds of lease and 
release of the 5th and 6th July, 1821, the uses were declared after the 
death of John Tarleton to J. C. Tarleton in fee. If he did not remain 
tenant in tail, but the use under the recovery of 1815 was to him in 
fee, of course the now plaintiff could take nothing : added to which, the 
release of 6th July, 1821, declared that not only the recovery then 
intended to be suffered but all other recoveries should enure to the use 
of J. G. Tarleton in fee ; so that, on the supposition that there was no 
deed to lead or declare the uses of the recovery in 1815, this deed of 
6th July, 1821 (if it operated at all, which, probably it would not, as 



17 ADOLPHUS & ELLIS. N. S. 417 

the recoyerj to which it relates was wholly void) would operate as a 
deed to declare the uses of that recovery; for the nonjoinder of Isi^ 
bella Tarleton who was only tenant for life in remainder would not be 
of any importance. 

John Tarleton and his wife Isabella having died before *J. G. r^A-to 
Tarleton sold and conveyed the property to the defendant Lid- ^ 
dell, it is not material to trace how John Tarleton 's life interest in a 
moiety of the Gollingwood estates, being the settled property in ques- 
tion, passed to J. G. Tarleton, together with the other moiety of which 
John Tarleton was seised in fee, by conveyance from the assignees for 
80,000Z. The whole case, in truth, resolves itself into this question ; 
whether the deed of 18th March, 1815, is still a subsisting deed as« 
regards the usf declared by it to J. G. Tarleton for life with remainder 
to his first son (the now plaintiff) in tail male ; even assuming, as we 
think we mpst, that the recovery of Easter term, 1815, is still unre- 
versed and subsisting as a recovery. Now the Court of Chancery 
ordered this deed to be cancelled. It was certainly void as regards the 
life estate of John Tarleton in the property in question, and as to 
the whole of the property of which he was seised -in fee, and professed 
to convey by it. But it is said that the fraud of the father did not 
affect the conveyance by J. G. Tarleton of his estate in remainder ; and 
that the Court of Chancery exceeded its power in ordering the whole 
deed to be cancelled, and should have declared it void quoad the pro- 
perty of which John Tarleton was seised in fee, and directed a recon- 
veyance of the life estate of J. Tarleton in the settled property to his 
assignees, leaving the rest of that deed as well as the deed of bargain and 
sale of the 18th March, 1815, to make a tenant to the prsBcipe, and the 
recovery, untouched. It must be recollected that' a fraud was practised 
on J. C. Tarleton by his father as much as it was upon the creditors. 
He was induced to execute the deed and join in the I'ecovery by the 
consideration of having his father's life estate and his fee simple estate 
^conveyed to him; which consideration utterly failed and never r^^^o 
took effect by reason of the fraud : and he was obliged ultimately *- 
to purchase a part only of the estates proposed to be conveyed to him 
for 30,000{. Surely, then, the fraud may well be said to have tainted 
the whole transaction. The use first declared (that during the life of 
the father) being void on account of tlie fraud, must not the subsequent 
uses also be held void 7 In Beckwith's Case, 2 Rep. 56 b, where husband 
and wife levied a fine of the lands of the wife, and the husband, with- 
out the wife's consent, by deed declared the uses to himself and wife 
for life with certain remainders over, and the wife by deed without the 
assent of her husband declared the uses to herself for life with the same 
remainders over as those contained in the deed of her husband, it was 
held that not only the uses for life in which they disagreed, but the 
snbaeqaent uses in which they agreed, were all void, and the fine was 

z2 



419 TARLETON v, LIDDELL. T. T. 1851. 

by construction of law to the use of the wife and her heirs as if no 
use had been declared. So, here, we think that all the uses declared 
by the deed of March, 1815, must be held void, and that, by constnio- 
tion of law, the recovery enured to the use of the father for life (which 
passed to his assignees), remainder to the son in fee. Whether the 
Court of Chancery at the prayer of J. C. Tarleton would or would not 
have set aside the deed to lead the uses altogether, both as regarded 
him as well as the creditors, we need not inquire. The Court did not 
do so ; the son does not appear to have been any party to the proceed- 
ings in Chancery ; and the decree is only that the deeds and recorerj 
*d901 ^^^^ fraudulent and void as against *the creditors. The snbse- 
^ quent order that they should be delivered up to be cancelled 
seems to have been for the benefit and protection of the creditors, and 
not of J. C. Tarleton. J. C. Tarleton no doubt treated the recovery 
of 1816 as having been set aside by the Court of Chancery, and, con- 
sidering himself to be still tenant in tail, as if that recovery had neTer 
been sufiered, afterwards in 1822 suffered another recovery ; bat the 
Court of Chancery did not authorize that step ; it dealt only with the 
estates of J. Tarleton the bankrupt, and authorized his assignees to 
sell a portion of them to J. 0. Tarleton : the assignees also, in joining 
with J. C. Tarleton to make a tenant to the praecipe, express in the 
release of 6th July, 1821, that they do so « at the request and by the 
direction and for the accommodation of the said J. C. Tarleton ;" and, 
as 'he could not then pay the purchase-money, 30,0002., the uses of the 
recovery are declared to the assignees during the life of J. Tarleton. 
Subsequently, by lease and release of 6th and 7th March, 1823, the 
purchase-money being paid, the assignees conveyed to J. C. Tarleton 
their interest during the life of J. Tarleton in the property in question. 
From all this it is plain that no part of the proceedings io Chancery, 
either in its decrees or orders, and ne act of the assignees, deals at all 
with the estate of J. C. Tarleton, or. prevents the operation of the 
release of March 18th, 1815, by which he declared the uses to himself 
for life only, save and except the order of the Court of 12th March, 
1821, for delivering up the deeds to the assignees to be cancelled, upon 
which we have already commented. 

But, if the deeds of March, 1815, be not wholly void, and J. C 
Tarleton became under them tenant for life in remainder after the death 
*4211 ^^ ^^ father and mother, *with remainder to his first son in tail, 
-^ still, as the consideration for his suffering the recovery of 1815 
and declaring the uses has wholly failed or rather never existed, that 
declaration of uses must be considered as voluntary ; and, on the part 
of the defendant (a purchaser for value in the year 1849), it is con- 
tended to be void within the statute 27 Eliz. c. 4. 

Undoubtedly, if J. C. Tarleton had been seised in fee in 1815, and 
had made a voluntary deed settling his estate upon himself for life with 



17 ADOLPHUS & ELLIS. N. S. 421 

remainder to his first and other sons in tail, though he afterwards 
married and had a son (the now plaintiff), he might in 1849 have sold 
and conveyed the lands to the defendant, a bon& fide purchaser, as to 
whom, by all the authorities, the settlement of 1815 would have been 
void within stat. 27 Eliz. c. 4. But, whether that statute extends to 
the case of a tenant in tail suffering a voluntary recovery, with a deed 
to lead the uses also voluntary, is the question here. The settlor him- 
self cannot at his own will and pleasure, if there be no sale or purchaser, 
treat his own voluntary settlement as void within stat. 27 Eliz. c. 4, 
and make a new settlement of the estate. Therefore, as J. G. Tarleton 
was only tenant for life in remainder at the time of the second recovery 
in 1822, being twenty-seven years before any sale took place, that** 
recovery could^ not operate at all, and may be falsified by the now 
plaintiff, the alleged remainder-man in tail under the release of 18th 
March, 1816. That second recovery in 1822 may, therefore, be put 
oat of consideration in our inquiry as to the effect of stat. 27 Eliz. c. 4, 
with reference to the purchase made by the defendant in 1849. The 
only way in which it should seem that the statute of 27 Eliz. can 
operate would be by treating *the sale and purchase by the de- r^Aoo 
fendant, in 1849, and the conveyance to him by J. G. Tarleton, *- 
as making void the declaration of uses in the voluntary deed of 18th 
March, 1815, and holding that thereupon the recovery of 1815, for 
want of a declaration of uses, would enure to give J. G. Tarleton a 
remainder in fee on the death of his father and mother, which he lias 
conveyed to the defendant in 1849. * 

The ease of Doe dem. Baverstock v. Rolfe, 8 A. & E. 650 (E. G. L. 
B. vol. 85), is an express authority for so holding. That case was 
mainly grounded on the case of Fitzjames v. Moys, 1 Sid. 183 : but all 
the authorities bearing upon this point were then considered ; and we 
think that the conclusion at which the Gourt arrived on such considera- 
tion was correct. 

The result is, that either the deed of March, 1815, was wholly vitiated 
and done away with by the fraud of J. Tarleton the father, or, if not, 
that the uses declared in it by J. G. Tarleton the son were voluntary. 
The effect is the same upon the supposed right of the present plaintiff 
in either view of the case. 

We are therefore of opinion, under all the circumstances of this case, 
that the plaintiff Banastre Tarleton has not any estate or interest in 
the moiety of the Gollingwood estates comprised in the indenture of 
settlement of the 80th September, 1790 ; and we shall so certify to the 
Vice Chancellor. A certificate was sent, as above. 



428 BLAIR v. ORMOND. T. T. 1851. 



*zi9^i *BLAIR, administrator of JOSEPH BUCKLEY, deceased, * 
^^"^J ORMOND and HAYWARD, Executors of THOMAS WOOD, 
deceased. May 29. 

Debt by administrator of B. on bond made bj W. to B., dated 5th December, 1812. The eendl- 
tion recited that B. had agreed to adTanoe to W. the produce of the 9»W of certain itoekia 
the fnnds, without any other advantage than B. would have been entitled to if the stock htd 
remained in his name in the bank; that B. had sold the stock and paid the prodoee to W.; 
and that it had been agreed between them that the same or a like sum of the same itoek 
should be replaced and transferred to B. ; and the condition was that, if W., before &th im% 
then next, purchased -the said amount of stock and transferred the same to B., and paid to 
B., in lieu of the dividends thereof, such sums as B. would have been entitled to reeein 
for the dividends if the stock had continued in his name, at such times, and in soch propor> 
tions, and in such manner, as the dividends would have been payable to B. if the stock hsd 
not been sold, then the bond to be void. Breach : (1 ) that W. did not, before the 6th June, orsioei^ 
purchaae the said amount of stock and transfer to B., or to plaintiif as administrator; (3) tbst 
the dividends of the stock, if it had remained standing in the name of B., would hare beet . 
payable half-yearly after the date of the bond, and that the fli^st and only one of fsek 
dividends before the said 6th June, would have been payable on 6th January, 1813; tkatoa 
llth September, 1824, B. died: that, if the stock had continued standing in B.'s name, « 
plaintiflTs as administrator, a large sum, to wit, Ac, would have been payable half-yearlj u 
dividends, and that the money payable in lieu of such dividends, and becoming due after B.'k 
death (during a period which was specified), amounted to a large sum, fo wit, k^; sad 
that, although the stock had not been transferred into the name of B., or of his administrator, 
yet W. had failed to pay the sums so due in lieu of dividends. 

Plea: that the causes of action did not accrue within twenty yean next before the eommenee- 
ment of the suit 

Replication, as to the first breach, that, while the- stock remained untransferred, and a eertahi 
sum, to wit, Ac, was due in lieu of the dividends, to wit, on 10th September, 1824, W. 
made on acknowUdgtnent to J, B. that the atoek remained untrune/erred contrary to the eondi* 
tion, and was due thereon, by W. making to B, eatit/aetion on account of part <f the mid 
eum, to wit, lOL; and that the action was brought within twenty years next after sock 
acknowledgment ; and as to the other causes of action, thai they did accrue within twentj 
years, Ac. 

Rejoinder, as to the first part of the replication, a traverse of the bringing of the action witbis 
twenty years next after such supposed acknowledgment. Issue thereon. As to the second pert 
of the replication, issue was joined. 

It was proved that B. had, since the advance to W., agreed to board and lodge with W. at lOi. 
6d. per week, that amount to be deducted from the interest of the money which W. had 
borrowed ; and that a settlement should be made every six months. B. had boarded aai 
lodged with W. till B.'s death, in September, 1824; but no settlement had ever taken pls(« 
though frequently demanded by B. 

Held, first, that, supposing the issue raised by the rejoinder cast upon plaintiff the burthen of 
proving that such an acknowledgment as that mentioned in the replication was made witbia 
twenty years next before, Ac, there was sufficient evidence to entitle plaintiff to a verdiel 
upon both the first and the second issues. 

Secondly, that the bond was not within stat 8 A 4 W. 4, c. 42, s. 5 ; that the replieatioB, 
therefore, was no answer in law to that part of the plea which related to the first breach; 
and that plaintiff was therefore not entitled to any damaget on that breach. 

But, thirdly, that that part of the condition which stipulated for the payment from time to tiaii 
of the sums payabl^ in lieu of the dividends still remained in force as to so much of the 
sums as had accrued due, from time to time, within twenty years before action brought, tbe 
penalty of the bond not having been insisted upon in respect of sums accruiog due earlier; 
and that plaintiff, therefore, was entitled to damages in respect of so much of the seeosi 
breach. 

Debt. The declaration stated that Thomas Wood, since deceased, in 



*424] 



the lifetime of Joseph Buckley, *a]so since deceased, to wit, on 
5th December, 1812, b; his certain writing obligatory, bearing 



17 ADOLPHUS & ELLIS. N. S. 424 

date the day and year last aforesaid, and sealed, &c« (profert excused, 

the bond not being in the possession or power of plaintiff), acknowledged 

himself to be bound unto the said J. Buckley in tha sum of 2000Z., to 

be paid to the said J. Buckley, his executors, administrators, &c. : which 

writing obligatory was subject to a condition, whereby, after reciting 

that the said T. Wood, having occasion to borrow and take up at interest 

the sum of 877Z. 4«. Id. stock of the 5L per cent. Navy annuities 

transferable at the Bank of England, had requested J. B. to advance 

him the same or the produce by sale thereof, which J. B. had consented 

and agreed to do without any advantage whatever on his part otherwise 

than he would have been entitled to in case the same stock had con* 

tinued to stand and remain in his own name in the books of the 

Governor, &c., of the Bank ; and that J. B. had accordingly caused the 

same stock to be sold, and upon or immediately before the execution of 

the said writing obligatory paid the produce thereof, amounting to 792Z. 

4«. 2(2., unto the said T. W., which T. W. did thereby acknowledge : 

And that it had been agreed, by and between T. W. and J. B., that the 

same or a like sum of 877Z. 4«. Id. stock in the said Navy 5Z. per cent. 

annuities should be replaced and transferred to J. B. at the time and 

in manner thereinafter mentioned : It was conditioned that, if T. W., 

his heirs, executors, or administrators, or any or either of them, should, 

on or before 5th June next ensuing the date of the writing obligatory, 

purchase the sum of 8771. 4«. Id. stock of the 51. per cent. Navy 

annuities, transferable at the Bank, and transfer or cause the same to 

be transferred unto or into the name or names of *J. B., or of r^j^oc 

his executors, &c., or of such person as he or they should appoint, *- 

and well and truly pay or cause to be paid to J. B., his executors, jtc, 

in lieu of the dividends thereof, such sum or sums of money as J. B., 

his executors, &c., would have been entitled to receive as or for the 

dividends of the said sum of 8772. 4«. Id. stock in case the same had 

continued standing in his or their own name or names for his or their 

proper use, at such time and times, in such shares and proportions, and 

in such manner, as the same dividends would have been payable to him 

or them in case the same had not been sold in manner aforesaid, then 

the said obligation should be void, &c. : otherwise, &o. The declaration 

farther alleged that, although the said 5th day of June next ensuing, 

&c., elapsed in the respective lifetime of the said J. B. and T. W., and 

althoagh J. B. did not appoint or transfer the said 877Z. 4«. Id. steck 

of the 5L per cent., &c.j or any part thereof, into the name or names 

of any person or persons other than himself the said J. B., and although 

T. W. did, to wit, on 5th January, 1813, pay to J. B. such a sum of 

money, in lieu of the dividends of the said sum of 877{. 4«. Id. stock, 

&c., as J. B. would have been entitled to receive on the day and year 

last aforesaid, as* or for the dividends of the same stock in case the 

same had continued standing in his name (the said 5th January, 1818, 

VOL. XVII. — 85 



*2^ BLAIR V. ORMOND. T. T. 1851. 

being the only day between the date of the writing obligatory and tlie 
5th June next ensuing the date thereof when any such dividend on the 
same stock would iiave become payable) : Yet' that T. W. did not nor 
would, on or before the said 5th June, purchase the said sum of 8T7i. 
4«. Id. stock, and transfer the same, or cause the same to be transfened, 
*iOR1 ^^^^ ^^ ^^^^ ^^^ name of J. B., as *by the said condition of the 

-* said writing obligatory he ought to have done, but therein wholly 
failed and made default ; and the said amount of stock never had been, 
nor had any part thereof or any stock in lii^u thereof ever been, trans- 
ferred into the name of the said J. B., or of the plaintiff, administrator 
as aforesaid, or either of them ; and the same is and remains wholly 
nntransferred, contrary to the tenor, &c., of the condition. 

Second breach. That the dividends of the stock in the condition 
mentioned, in case the same had not been sold as aforesaid, bat had 
continued standing in the name of the said J. Buckley, would have been 
payable half-yearly from and after the date of the writing obligatory, 
on 5th January and 5th July in every year ; and the first of such half- 
yearly dividends would have been so payable on 5th January, 1813', 
and that halif-yearly dividend was the only dividend which would htve 
so become payable after the making of the writing obligatory and before 
the said 5th June in the condition mentioned. And that J. B., after- 
wards, and after the passing of a certain Act of Parliament (a) ««Foi 
transferring several annuities of 52. per centum per annum into annui- 
. ties of 4{. per centum per annum," to wit, on the 11th September, 1824, 
died. . That, in case the stock in the condition mentioned had not been 
sold, but had continued standing in the name of J. B., or of the plun- 
tiff as administrator, within the true intent, &c., of the condition, a large 
sum of money, to wit, 182. 88. 5e2., would, on every 5th day of Januvy 
and 5th day of July, in each of the years 1825, &c. (te 1830, inclusive), 
have become due, &c., aa and for the dividends thereof: And the set^ 
ral sums of money payable by virtue of the condition in lieu of snch 
*d971 *^&^^~°^^i^^^^^®d dividends respectively (and which suma reaper 

^ tively became due by virtue of the condition after the decease 
of the said J. B.) amounted in the whole to a large sum of money, to 
wit, 221{. \b. That afterwards, and after the passing of an Act of Par- 
liament (i) "For transferring certain annuities of 4{. per centum per 
annum into annuities of 8{. 108. or 5{. per centum per annum," another 
large sum, &c. : averment that 162. 2a. 4d. would, on every 5th January 
and 5th July from 1831 to 1844 inclusive, have become due, payable, 
&c., as and for the dividends in the said condition mentioned, if the 
said stock had not been sold : and the sums payable by virtue of the 
same condition in lieu of such last-mentioned dividends respectively 
(and which also became due by virtue of the condition after the decease 
of J. B.) amounted in the whole to a large, &c., to •wit, 4512. St. 4^ 

(a) Stet 3 a 4, e. 9. (») Stat 11 O. 4 A 1 W. 4, «. 1%. 



17 ADOLPHUS k ELLIS, N. 8. 427 

That ftfterwards, and after the death of J. B., and after the respective 
Bums of money hereinbefore mentioned in lieu of the several dividends 
aforesaid had so become dne, and before the commencement of this soil, 
to wit, on 8d September, 1844, administration of the goods, &c., of J. 
B. was first granted to plaintiff. And although the said stock in the 
condition mentioned hath not, nor hath any part thereof, or any stock 
in lien thereof, or any part thereof, ever been transferred into the name 
of J. B. or of plaintiff, administrator, &c., or of any other person with- 
in the true intent, &c., yet, &c. : Averments that T. Wood in his lifetime 
did not, nor did nor would defendants, execntqjrs, &c., pay to plaintiff, 
administrator, &c., the respective sums which so became due and paya- 
ble, according to the condition, &c., in lieu of the several dividends 
aforesaid or any part thereof; *but the same, amounting to r^Ag^Q 
672L 6s. 4(2., are now wholly due and unpaid, &c., to plaintiff, *- 
administrator as aforesaid, contrary to the tenor, &c., of the condition. 
By reason of which said several breaches the writing obligatory be- 
came forfeited: and thereby an action hath accrued to plaintiff, as 
administrator, to demand and have of and from defendants, as execu- 
tors, the said sum of 2000{. above demanded. 

Pleas* 1. That the bond was not the deed of testator. Issue there- 
on. 2. That the causes of action in the declaration mentioned did not, 
nor did either of them, accrue at any time within twenty years next 
before the commencement of this suit. 

Beplication to the 2d plea, so far as the same related to the breacl\ 
of condition first assigned : That, at the time of the making of the ac- 
knowledgment by Thomas Wood as thereinafter mentioned, the amount 
of stock in the condition mentioned was and remained wholly untrans- 
ferred, contrary to the tenor, &c., of the condition in that behalf ; and 
that a certain sum of money, to wit, 18Z. 8s. 5(2., was then due and 
payable from T. W. to J. B/, pursuant to the said condition, in lieu of 
certain dividends which J. B. would have been entitled to receive for 
and in respect of the baid sum of 877Z. 4s. Id. stock of the 5Z. per cent. 
Navy annuities, in case the same had continued standing in his name 
and had not been sold as in the condition mentioned ; and that, after 
the making of the writing obligatory, and whilst the said stock was and 
remained wholly untransferred as aforesaid, and whilst the said sum of 
mcmey last mentioned was so due and payable in lieu of such mentioned 
dividends, to wit, on 10th September, 1824, T. W. made an acknow- 
ledgment to the said J. B. that the said amount '^'of stock in the r^^Aoq 
said condition mentioned then remained and was untransferred ^ 
contrary to the said condition in that behalf, and was then due thereon, 
to wit, by T. W. then making to the said Joseph Buckley part satisfac- 
tion on account of the said writing obligatory, that is to say, by T. W. 
then making to tho said J. B. satisfaction on account of part of the 
said sum of money so then due and payable in lieu of the said last-men- 



/ 

/ 



426 BLAIR v. ORMOND. T. T. 1851. 

— ^ .. r/^— 

being the only day between the date of the writing t\ M actiomrw 
6th Jane next ensuing the date thereof when any pv .gment so made 
same stock would Jiave become payable) : Yet tb / isaid. 
would, on or before the said 6th June, purchas: -i causes of action 

U. Id. stock, and transfer the same, or cause / i the said condition 
^,^^, unto or into the name of J. B., as ♦ ^^ except as last afore- 

J said writing obligatory he ought tr ' within twenty years next 
failed and made default ; and the said 

nor had any part thereof or any stc - '^ replication: That the action 
ferred into the name of the said J ^ next after the supposed acknow- 
as aforesaid, or either of them • ^on alleged to have been made. Issue 
untransferred, contrary to thr jt of the replication, issue was joined. 

Second breach. That t> j^ Coleridge, J., at the Spring Assizes for 
mentioned,' in case the sp :j^ ^^^ fo«nd for the plaintiff on all the issues, 
continued standing in i\/Jtbe Co^^^ ^» » ^^ase, the material parts of which 
payable half-yearly f J^ . ... 

on 6th January an*' ' stttH ^^^^ ^**« Vitiiioti was brought and tried in 
yearly dividends . :^V Sir J. L. K. Bruce, V. C, of the 9th of July, 
and that half-^ w'^^'^ncery between the said James Blair (complainant) 
so become pr y^^^Orn^oni and W. Hay ward and others (defendants); 
the said SV <fj^^ upon hearing read certain exhibits, the defendants' 
^*''d8, an / ^^^'ii'fld the proofs, &c., it was ordered that the now plain- 
transfer- .^!/V''^w defendants or the defendant Hay ward, should proceed 
ties of ^,^^0 action of law to be brought by plaintiff against Ormond 
^^®^- ^^^'''^'Idf ^^ Hayward alone, upon the said bond; and that such 
sold ^j ^% old he deemed to have been commenced on 4th September, 
tiff -^^'^^^/j'j*/ of the filing of plaintiff's bill : and that for the purposes 
^' ^^acb taction the defendants or defendant therein should admit assets, 
' d"th»t the bond was not in plaintiff's possession or power, and that 
'^ffss dalf executed, and that it was in- conformity with the exhibit 
/jefendants being, nevertheless, at liberty to take any objection as to 
^tainp ;(a) and for that purpose defendants were at liberty to pW 
Xon est factum): and defendants were to admit grant of administration 
to plaintiff, as in the pleadings mentioned, on 3d September, 1844; and 
both parties were to admit that J. Buckley died on 11th September, 
1824, and that T. Wood died on 5th March, 1843. 

The plaintiff produced on the trial the original draft bond from which 
cHe bond mentioned in the decree as bearing date 5th December, 1812, 
'^^a engrossed (and which was one of the exhibits before the Vice Chan- 
^^llor) ; and such draft was a correct copy of such bond. The case then 
^t; out the draft, which, including the condition, corresponded withth* 
■^otid and condition alleged in the declaration. 
^ (The case then made some statements as to the other exhibits, which 
^^x?c not BOW material.) The admissions were made as ordered. 

(«) See BUlr v. Ormond, 14 Q. B. 732 (B. C. L. R. toL 68). 




17 AD0LPHU8 & ELLIS. N. S. 481 

out evidence to show that in fact Buckley r^^ qi 

that he had, thereafter, been boarded ^ 

^ek ; that, from language of Wood, which 

'i allowance had been made by him in 

j\ie arrangement had been continued 

^ .ptember, 1824.(a) 

^,^^ "^f^ ^^ '^^ ^^ *** ^^' evidence eet oat in the case. 

, '*'• ^ ^'-^ ** ' ''> ' illiftm Joyce, proved that she was the daughter of William 

\ '^ }^' *''4\ ^^^ * the said T. Wood. That she was bom in the year 1800; Ac. 

'\''^^ ' ^ W .e oironmstanoes under which Sasann&h had the opportunity of wit- 

'- y ^^^ Thomas Wood's house. That she knew J. Buckley. That he boarded 

v., ^y daid T. Wood at Charlton. That, before 1812, he went away every six 

:. ' " ' to bring the interest of his money. That it was the interest of his money 

^ She heard it was so from T. Wood and from Buckley. That, out of that money, 

.y 10«. M. a week to T. Wood for board and lodging and washing. That Buckley 
aake her a present of a five shilling piece every half year when he received his 
ads. That she had heard conversations between T. Wood and Buckley about Buckley's 
^aey in the funds. 8he had heard her uncle say : " Sell out your money in the funds, and let 
ffle have it, as the bank wUl break. I will let you have more interest than you get at the bank 
for it." She had heard that several times. That Buckley was very mueh against it for some 
time; bat he at length eomplied with iL That that was about 1812. That he went away to 
London and came back, and brought back the money, 8002. odd, sewed in his shirt under his 
left arm. That, after the loan, she had heard conversations between Buckley and Wood about 
the advanco, and about Buckley's board and lodging. That what she heard from them was 
that the half guinea a week for his board, lodging, and washing was settled to be paid from the 
interest of the money. That the half guinea a week for his board, lodging, and washing was settled 
to he dednoted from the interest of the money which the said T. Wood had borrowed. That that 
agreement wsta made after Buckley had sold out his stock ; nnd that they were to have a settle- 
ment every six months, the same as he had when he had brought the money from the bank ; but 
tbey never had a settlement afterwards. That she had heard Buckley ask her uncle for a settlement 
repeatedly ftfter (he loan, sometimes two or three times a day, sometimes not for a week or so. 
On those oeeaaions he would say : — ** Landlord" or ** Doddy," ** I want you to settle with me." 
He waa in the habit of calling him Landlord more frequency than Doddy. That sometimes her 
ancle would give him a few shillings, sometimes not, saying, ''What do you want with money? 
You bara plenty to eat and drink." All this took place before the year 1817. (Some facts 
were theft added, showing the facility with which Buckley was managed by Wood, especially as 
to the cuatodj of Buckley's papers.) That she had heard Buckley say to Wood : ** You have 
gotmjmonej; and I ean neither get principal or interest ; you keep me pennyless." That, 
after Baekley's death. Wood told her that Buckley had lived to spend all his money ; whereupon 
she told him she knew better, and that he nevergave him the chance to spend it That Wood 
made no answer, but smiled and walked away. That, afler the loan of the stock, Buckley did 
not appear to have in his pocket any more money than two old five shilling pieces and a few 
hai/penee, but no money to any amount: and ttfat, with respect to his usual habits as to 
expenaes, she never knew him to spend anything except for a bit of gingerbread which he 
would baj, nnd such a thing as that. 

Baekley continued from the time of the said arrangement between him and Wood, until the 
decease of Buckley, to board and lodge with Wood. Buckley died in the house of Wood, a^an 
advanced »ge, on 11th September, 1824: and there were two crown pieces in Buckley's pocket 
when he died. 

Sarah Bartlett proTcd that she had heard Joseph Buckley ask Thomas Wood for a settlement 
That the last time she heard this was in April, 1823. That Mrs. Wood then si^d to her husband 
Thomas Wood : "We have had Buckley's money; and you pay it" Wood then said : "Well, 
Pfte, we bsMl ; and I mean to pay it" 

Simoa Croodie, who had lived with Wood from Michaelmas, 1822, to Michaelmas, 1823, proved 
that he bad frequently heard Buckley say : "Please, Mr. Wood, settle with me." Wood used to 
^ rerj mild -with him and say, " I will do so another day." That that would pacify him ; and 
le would go a^ayi And come back, and Wood would tell him the same story ; and sometimes 
^ood would say that he would settle with him another day. Wood was never harsh with him, 
ind o«ed to say, "I will settle with you another day, Mr. Buekley," and always was very mild. 
iometimes Buckley would break out into a passion with Wood, and call Wood a rogue. 

2A 



432 BLAIR v. ORMOND. T. T. 1861. 

*i^9l *^^^ pleadings on both sides were to form part of the ease. 

*'-' The question for the opinion of the Court was : 
*j.q«n *Whether there was evidence, to go to the jury, to entitle the 
-^ plaintiff to a verdict on the issues raised upon the 2d plea, or 
either of them; and whether the said evidence was sufiBcient in that 
behalf; the Court to draw such inferences of fact as the jury might 
have drawn. And the verdict on those issues was to be entered for 
plaintiff or for defendants, as the Court might direct. Either party to 
be at liberty to raise all objections arising either from the facts or on 
the face of the record. And either party to be at liberty to turn the 
special case into a special verdict, amending it first by adding as facts 
such inferences as the Court might have drawn. 

The case was argued in last Easter Term (May lst),(a) by Kinglake^ 
Serjt., for the plaintiff, and by Butt for the defendants. The points 
relied upon in argument appear sufficiently by the judgment. 

Cur, adv. vuU, 

Lord Campbell, C. J., in this term (May 29th), delivered the judg- 
ment of the Court. 

The first q[uestion to be considered in this case is, whether there was 
*±^dr\ ®^}^®°^® ^0 go ^0 ^^® j"^y ^0 entitle *the plaintiff to a vcr4ict 
^ on the first issue on the second plea. We think that there was. 
The defendants merely rejoined, as to the part of the plaintiff's repli- 
cation to the second plea firstly replied, that the said action was not 
brought within twenty years next after the said supposed acknowledg- 
ment of the said Thomas Wood in the said replication alleged to have 
been made. Supposing that this casts upon the plaintiff the barthen 
of proving that such an acknowledgment as is stated in the replication 
was made within twenty years next before the commencement of th« 
action on the 4th of September, 1844, we think that the evidence was 
quite sufficient for that purpose, as it proved an agreement betweeii 
Wood and Buckley that Buckley should be boarded and lodged by Wood 
for the weekly sum of half a guinea, and that this weekly sum should 
go and be accepted in part satisfaction of the sums due from Wood to 
Buckley in respect of the dividends on the stock, till it should be t^ 
placed; and, further, that this agreement was carried into effect and 

.William AVood, a nephew of Thomas Wood, proved that, in September, 1814, he vrent to lire 
in a house of his uncle's at Charlton, and that Buckley was living with hie uncle at tbmt time »t 
Charlton. That, in answer to applications for a settlement by Buckley, Thomas Wood uftd to 
pay, ** You don't want money." That he never saw his unole Thomas Wood give Buckley doq«t. 
And that, after Buckley's death, he said to his uncle, ''How you must be put about for moo«T Ij 
Buckley's death :" in answer to which his unole said that, If no papers eould be found, iK>lh\x^iL 
could be redeemed ; and that he had taken care of that. That Buokley was iU for one we«k 
before his decease ; and that he was not sensible during that week. 

It was admitted by the defendants' counsel that Buckley was a weak-minded man, iknd tb&t 
the stock mentioned in the condition of the bond had never been transferred. Buckley waj 
taken ill oh a Saturday, and died the next Saturday, 11th September, 1824. He was not qiutff 
sensible all the week ; not sensible so as to converse, in any part of the week. 

(a) Before Lord Campbell, G. J., Patteson, Wightman, and £rle, Ji. 



17 ADOLPHUS & ELLIS. N. S. 484 

acted upon till the death of Buckley, on the 11th of September, 1824, 
down to which time he was boarded and lodged by Wood ; the weekly 
payment, by the agreement, going and being received under the agree- 
ment in satisfaction of money then due and growing due from Wood to 
Buckley in respect of the dividends, the stock never having been 
replaced. Therefore, if this evidence is believed, immediately before 
the death of Buckley, Wood made acknowledgment to him that the 
stock remained untransferred, and was then due ; and Wood then made 
to Buckley part satisfaction on account of the bond, by making Buck- 
ley satisfaction on account of part of the sum of money then due and 
payable in lieu of the dividends. There being *such evidence, r^^ ^ or 
we draw from it the inference which I have stated : and the ac- ^ 
tion having been commenced within twenty years, this issue must be 
entered for the plaintiff. The cases of Hart v. Nash, 2 0. M. & R. 
837,t S. C. 6 Tyr. 966, and Hooper v. Stephens, 4 A. k E. 71 (E. C. 
L. R. vol. 81), are in point to show that such a dealing is equivalent to 
a money payment.(a) 

The verdict upon the second issue raised on the second plea must 
likewise be entered for the plaintiff, as the dividends mentioned in the 
second breach became due within twenty years next before the com- 
mencement of the action. 

By the agreement between the plaintiff and the defendants, stated in 
the special case, either party is at liberty to raise any objection on the 
face of the record. And the defendants objected that the first replica- 
tion to the second plea is bad in point of law, because such an acknow- 
ledgment as is there stated would not take the case out of the statutes 
of limitations. 

To judge of this objection, we must look to see what the real con- 
tract was, as it appears frofn the bond and condition bearing date 6th 
December, 1812. 

The condition contains a recital, that Wood wished to borrow from 
Buckley, and to take up at interest, the sum of 8772. 4s. Ie2., five per 
cent, stock, and- had applied to Buckley to advance him the same, or 
the produce by sale thereof; whicli Buckley had agreed to do, being 
only entitled to as much as he would have received in case the stock had 
continued standing in his own name. It *then recites that the r^Aoa 
Btock had been sold out, and the produce thereof, amounting to ^ 
7922. 4s. 2d.j had been paid to Wood ; and that it had been agreed be- 
tweeti them that the like sum of 8772. 4s. Id.j five per cents., should be 
replaced by Wood in the name of Buckley. The condition is then 
declared to be, that Wood should replace the stock on or before the 6th 
day of June, 1813, and pay to Buckley, in lieu of the dividends thereof, 

(o) Worthington v. Qrimsditeb, 7 Q. B. 479 (E. C L. R. rol. 6:i), CiiUmnder r. Howftrd, 10 
Con. B. 290 (B. C. L. R. vol. 70), Bernn v. Qothing, 3 Q. B. 740 (E. C. L. R. vol. 43), and the 
note ta 1 Smith's Leading Cases, 321, od Whitcomb v. Whiting, 2 DoagL 652, were also referred 
to dnriog the argument on ibis point And see Liusas r. Jones, 6 Q. B. 949 (E. C. L. R. vol. 48). 



436 BLAIR «. ORMOND. T. T. 1851. 

■ I.I. 

such sum or sums of money as Backley would have been entitled to 
receive for the dividends of the 8772. 4«. Id., in case the same had 
continued standing in his name, at 9ueh time and times^ in such shares 
and proportions, and in such manner, as the same dividends would have 
been payable to him in case the same had not been sold in manner 
aforesaid. 

The bond is conditioned for replacing a precise amount of stock on a 
fixed day, viz. 5th June, 1813, not for the payment of any given sum 
of money on that day, nor even for the payment of such a sum of money 
as would purchase the given amount of stock ; but for replacing the 
stock itself. 

Such being the nature of the instrument on which the action is brought, 
we are to consider whether it comes within sect. 5 of stat, 3 & 4 W. 4, 
c. 42, by which it is provided that, if any acknowledgment shall have 
been made, either by writing, or by part payment or part satisfaction 
on account of any principal or interest being then due on any specialty, 
it shall be lawful to the persons entitled to the action to bring their 
action for the money remaining unpaid and so acknowledged to be due 
within twenty years aftei* such acknowledgment by writing or part pay- 
ment or part satisfaction as aforesaid. The defendants* counsel insisted 
♦d^71 ^^^^ ^^^^ cannot extend *to a bond conditioned for the replacing 
-* of stock, arguing that this is an act to be done, and that the 
breach sounds in damages, depending upon the price of the stock when 
it ought to have been replaced or when the action is brought. 

We are of opinion that this view of the 5th section is correct. The 
payment of sums of money in lieu of dividends which would have been 
payable if the stock had remained in the name of the obligee is not pay- 
ment of interest; neither is any sum of money thereby acknowledged to 
be due. Indeed the replication itself does not so allege ; but only that 
the said Thomas Wood made an acknowledgment that the said amount 
of stock remained untransferredy by making part satisfaction on account 
of the money so payable in lieu of dividends. This averment certainly 
does not bring the case within the words of the 5th seotion, nor (as we 
think) within the spirit of it. If 'any authority was wanting, we hare 
the case of Gillingham t;. Waskett, 13 Price, 434, in which it was held 
that a plea of set-off to such a bond was bad, because it was not a bond 
for the payment of money. The argument, that, as the bond in ques- 
tion is plainly within the 3d section, it must necessarily be within the 
5th, is quite untenable ; for it is obvious that a bond conditioned to 
perform the covenants of a lease in respect of repairs, or any other 
matter sounding purely in damages, would be within the 3d section ; 
and yet it would be impossible by any ingenuity of construction to bring 
it within the 5th. As, therefore, the first breach relates to the day of 
default, viz. 5th June, 1813, which was more than twenty years before 
the action, and the plea sets up that defence, to which the replication 



17 ADOLPHUS & ELLIS. N S. 487 

is DO answer in law, we are of ^opinion that, though the yerdict r^^^no 
on the rejoinder taking issue on that replication must be found ^ 
for the plainttiT, the plaintiff nevertheless is not entitled to any damages 
on that breach, on account of the insuflSciency of the replication. 

The second breach stands on very different grounds. Though the 
remedy to recover damages for not replacing the stock is taken away 
by lapse of time, yet the condition so to replace it is not thereby 
wholly destroyed : and that part of the condition which requires the 
payment from time to time of such sums of money as Would have been 
payable by way of dividends if the stock had remained in the name of 
Buckley still continues in force. This last stipulation is distinctly ex- 
pressed in the words of the condition, that Buckley was to receive such 
sums of money as he would have been entitled to for dividends at such 
txme% and in such manner as the dividends would have been payable to 
him if the stock had not been sold out. The defendants' counsel con- 
tended that this extends only to the payment of the dividends down to 
the 5th June, 1813, when ^he stock was to be replaced. But down to 
that day there could only have been one dividend due ; and the language 
employed seems to us clearly to extend to all accruing dividends till 
thp stock should be replaced. 

It was further contended that the statute of limitations must run 
from the 5th June, 1813, when there was a forfeiture of the bond for 
not replacing the stock. But, as is laid down by Parke, B., in the 
recent case of Sanders v. Coward, 15 M. k W. 48, 56,t " although, on 
the first breach of the condition of a bond, the obligee may sue the 



obligor, and have judgment under stat. 8 & 9 W. 8, c. 11, as *a 



[*439 



security of a higher nature for future breaches, he is not bound 
to pursue that course. He may waive the right of action on the bond, 
in respect of the fi^st breach, or any number of breaches, and be con- 
tented with the specialty security only for future breaches, and sue 
afterwards on a subsequent forfeiture, and assign that for a breach. '*(a) 

For these reasons We are of opinion that the plaintiff is entitled to 
judgment on the second breach. 

Leave is reserved to turn the special case into a special verdict : but 
there are no materials for a special verdict ; and the*only questions which 
can now be debated appear on the record, and may be brought before a 
superior court by writ of error. Our judgment, therefore, is that the 
verdict entered for the plaintiff must stand, and that the judgment be 
entered for the plaintiff for the penalty of the bond; but that the 
damages be confined to those claimed in the second breach. 

Ordered : That the verdict entered herein for the plaintiff do stand, 
and that judgment be entered for the plaintiff for the penalty of the 

/a) lackey r. Hawkios, 4 Com. B. 055 (E. G. L. R. ToL 50), Bealy «. Greenslade, 2 Cro. k 
J. Al.f S. C 2 Tvr. i21, HoIIia v. Palmer, 2 New Ca. 713 (E. C. L. R. vol. 29), and SayUe «. 
Jackson, 13 Price, 715, were also cited in the argument on this point 

VOL. xvu.— 36 2 A 2 



4S9 BLAIB «. OBMOND. T. T. 1851. 

# 

bond : bat that no damages be levied on the first breach, and thit 
damages (viz.) 672^ 6«. M. be levied on the second breach. 



*440] *LATHAM and Another v. SPEDDING. May 12. 

Where a plaintiff in the Superior Conrts, having recovered leas than 20^, applies for eosti^ 
under stat. 13 A 14 Victw e. 61, s. 13, on the ground that title to hereditaments came in q««s- 
tion, the onus is upon him to show that he ought to have costs : and he must prore tktt 
title did bon& fide eome in question at the trial. 

The plea of Not possessed, in an action of trespass quare olausum fregit, does not neccssanlj 
raise a question of title in this sense. 

The proviso in sUt 9 A 10 VlcL c 95, s. 58. as to actions " in which the title to Bnf hersdits* 
ments "shall be in question," extends only to actions in which the question of title setaallj 
arises in the course of the trial 

Lush, in last Easter Term, obtained a rule to show cause vrhj the 
order of Patteson, J., after mentioned, should not be rescinded. 

It appeared by the affidavits on which the learned Judge made the 
order that the action was trespass for .breaking and entering the dwell- 
ing-house of plaintiffs. Defendant pleaded : 1. Not guilty (by statote); 
2. Not possessed. On the trial, before Lord Campbell, C. J., at the 
Middlesex Sittings after Hilary Term, 1851, a verdict was found for 
plaintiffs, with 40«. damages. The Lord Chief Justice said that he 
would not certify that it was a proper case to be tried in a superior 
Court ; and consequently the plaintiffs made no application for a certi- 
ficate. The learned Judge, on the facts, made an order that the Master 
should tax and allow to plaintiffs their costs of suit according to the 
statute. 

Montague Chambers and O. W. Wood now showed cause.(a) — The 
Judge had power to make the order. The action >as brought for a 
cause for which no plaint could have been entered in a county court, the 
record necessarily raising a question of title. [Patteson, J. — As then 
advised, I thought I had no discretion, and was bound to make the order. 
*44n ^'^^ Court of *Exchequer, in Jones r. Harrison, 6 Exch. 329, t(i) 
^ has since deci4ed that the power of the Judge under stat. 13 & 
14 Vict. c. 61, s. 13, is discretionary.] Jones v. Harrison shows that 
the Judge has at all events the power of making the order, thoagh he 
may not be absolutely bound to make it. There the action was brought 
for a matter in which the Superior Court and the county courts had 
concurrent jurisdiction; but the question of title, here raised, ii 
expressly excluded from the jurisdiction of the county courts by stat. 
9 & 10 Vict. c. 95, s. 58 : in either case the Judge has clearly the power 
to make an order for costs under stat. 13 & 14 Vict. c. 61, s. 13. 

(a) Before Lord Campbell, C. J., Patteson, Wightman, and Erie, Js. 

(ft) See Orchard v. Mozsy, 2 E. A B. 206 (E. C. L. R. voL 75); Crake v. Powell, IE. SB. 21^ 
And Bee sUt 15 A 16 Vict. o. 54, s. 4. 



17 ADOLPHUS & ELLIS. N. S. 441 

« • 

[Pattbson, J. — ^If I had thought I had a discretion, I should have 
refused to make the order, as I agreed, in my yiew of^the case, irith the 
Lord Chief Justice, who refused to certify.] No certificate was neces- 
sary. The question of title, raised hy the issue on Not possessed, is out 
of the jurisdiction of the county courts altogether ; Timothy v. Farmer, 
7 Com. B. 814 (E. C. L. R. vol. 62) ; Tinniswood v. Pattison, 3 Com. 
B. 243 (E. G. L. B. toI. 64); Purnell v. Young, 8 M. & W. 288 ;t 
Wright V. Cattell, S. C. (not S. P.), 18 Beav. 81, 19 L. J. (N. S.) Ch. 
527. The plaintiffs are therefore entitled to costs under thd Statute of 
Gloucester (6 Ed. 1, c. 1, s. 2). [Lord Campbell, C. J. — The question 
of title may arise under the plea of Not possessed ; it does not follow 
that it must.] The cases cited show that the plea puts the plaintiff's title 
in issue. [Lord Campbell, C. J. — The words of stat. 9 & 10 Vict. c. 
95, s. 58, are <Mn which the title," &o., << shall he in question." That 
seems to pdint to something more than the mere raising of the issue 
open the record. Wightman, J. — Before the New Rules the 
*plaintiff 's title might be disputed under the plea of Not guilty, r^.^^^ 
According to your argument, there would always have been a ^ 
question of title when that plea was pleaded.] That objection is noticed 
and answered in the judgment in Purnell v. Young, 8 M. & W. 295.f 
[Lord Campbell, C. J. — ^Surely a county court may try the mere ques- 
tion of possession or non-possession.] Purnell v. Young, 8 M. & W. 
288,t expressly decides that a denial of possession is necessarily always 
a denial of title. Tinniswood v. Pattison shows that it is immaterial 
whether or not the question of title be afterwards actually raised at the 
trial ; the defendant must at all events be prepared at the trial with 
STidence as to that question. [Pattbson, J. — How can the county 
court tell whether it has jurisdiction in a matter brought before it, when 
there are no pleadings ?] The nature of the issue raised would appear 
in the course of the eridence. [Pattbson, J. — Do you go so far as to 
say that no action of trespass for breaking and entering can be tried in 
a county court ?] It cannot, where the title of the plaintiff is denied. 
Even consent could not give jurisdiction. 

Lushf contr&. — The question is simplv whether the plaintiffs are enti- 
tled to an order for their costs under stat. 13 & 14 Vict. c. 61, s. 18. 
In the first place, Jones v. Harrison, 6 Exch. 829,t decides that the 
Judge's power to make such order is discretionary. Is the present, 
then, a case for the making of an order under such discretionary power ? 
It is said that, by stat. 9 & 10 Vict. c. 95, s. 58, no plaint could be 
entered in respect of this dispute in a county court. But the cases 
cited in support of this proposition do not go that length. *Pur- rn^AAo 
nell V. Young, 8 M. & W. 288,t was decided upon the construction *- 
of stat. 43 Eliz. c. 6, which defined the classes of actions in which a 
Judge might certify to deprive the plaintiff of his costs, and which 
excluded actions concerning <«any title or interest of lands." Lilley 



448 LATHAM v. SPEDDING. T. T. 1851. 

■ : w 

9. Harvey, 5 Dowl. k L. 648, decides that it is for the Judge who tries 
the cause to determiiie whether or not a question of title is really raised 
in the cause. There was nothing here which could have authorized a 
county court to decline jurisdiction, if the action had been brought there. 
The affidavits do not show that any question as to title was in fact raised 
at the trial ; it was for the plaintiffs to show that it was ; and from 
what appears to have been said by the Lord Chief Justice it is clear 
that it was not. A prohibition could not have been granted, upon the 
mere issuing of the plaint(a) in the county court : and therefore the 
application of the plaintiffs for costs, which assumes that there was a 
case for prohibition, is incorrect. The cases cited as showing the effect 
of a plea of Not possessed decide only that under that plea the question 
of title may be raised ; not that it is necessarily laised. [Lord Camp- 
. BBLL, G. J. — I should be sorry if the plaintiffs, in the present case, 
were entitled to full costs : the action was vexatious ; and there was 
nothing in it which a county court could not have tried. My own 
impression is that it is not within the exceptions in the county court 
Acts: that these exclude actions in which title << shall be*' in question, 
but not actions in which title might ba in question.] 

Cur. adv. vulL 
Lord Campbell, C. J., afterwards, in this term (May 29th), delivered 
the judgment of the Court. 

4'iiiJ.i *^^ ^^^ ^^ opinion that this rule must be made absolute. The 
-* learned Judge made the order for costs to the plaintiffs, consider- 
ing that Stat. IS k 14 Vict. c. 61, s. 13, was imperative on him to do 
BO, if the case was one which could not have been brought before the 
county court, and treating the defendant's plea of « Not possessed" as 
conclusive upon him that the title did come in question, and therefore 
that the county court could not have entertained the suit, according to 
the case of Timothy v. Farmer, 7 Com. B. 814 (E. C. L. R. vol. 62). 
At the time of the decision in that case, the initiative as to depriving 
the plaintiff* of costs lay on the defendant, by stat. 9 & 10 Vict. c. 95, 
8. 58; and it might be that he, having pleaded "Not possessed," was 
concluded from asserting that t^e title did not come in question. But, 
by the last Act, the onus as to costs for the plaintiff* is thrown on the 
plaintiff; and we think it clear that he is bound to show that he could 
not sue in the county court, by establishing the fact that the title did 
really bon& fide come in issue ; not merely that the defendant had so 
pleaded that it possibly might have come in issue. The words of the 
58th section of stat. 9 & 10 Vict. c. 95, are, that the court shall not 
have cognisance of any action " in which the title to any corporeal or 
incorporeal hereditaments" <' nhall be in qttestion." We hold that these 
words mean, shall really and bon& fide be in question. Now the affi- 
davits in this case clearly show that the title was not in question. The 

(a) See SeweU v. Jooes, 1 L. M. A P. 526. 



17 ADOLPHUS & ELLIS. N. S. 444 

plaintiffs, therefore^ might have sued in the county court ; nor could 
the defendant have ousted the juriBdiction of that court bj any pretence 
of disputing the title. The order therefore cannot be supported. 

Rule absolute. 



♦The QUEEN v. The Poor Law Commissioners for ENGLAND ^^ . . - 
and WALES. IFeb. 22.] l ^^^ 

In the Matter of The United Parishes of ST. GILES IN THE FIELDS 
and ST. GEORGE BLOOMSBURY. 

The Poor Law Commissioner^ may, by tbeir orders under stat. 4 A 6 W. 4, e. 76, ss. 15, 42, 
control, r«gu1»te, and gaide the guardians of a parish or union, though goTemed hj a local 
Act, in ih« management of the poor: but they cannot change the relations of the local 
authorities among tbemselyeSi nor substantially alter the machinery established under the 
Aet to carry out its purpose. 

Under a local Act,Ml G. 4 A 1 W. 4, o. z., the general management of the affairs of a district 
relative to the maintenance and government of the poor, was intrusted to a body of vestry- 
men ; and they, under the same Act, chose directors of the poor, who performed executive 
duties under the vestrymen, and subject i\ rules of government which the Act empowered 
the vestrymen to make. The directors were by the same Act to exercise all the powers, ac 
to the poor, which might b^ exercised by churchwardens and overseers. The vestrymen 
were authorised to appoint a governor of the workhouse, and such other officers as they 
should think fit, with salaries, and from time to time to remove such officers and appoint 
others in their places. 

The Po6r Law Commissioners, acting under stat. 4 A 6 W. 4, c. 76t made an order, requiring 
among other things, by Article 66, that the vestrymen of the above district should, whenever 
it should be requisite, or there should be a vacancy, appoint persons to certain enumerated 
offiees (including that of Master of the workhouse), and also such assistants and servanta •■ 
they or (he dire^on, with the consent of the Commissioners, might deem necessary for the 
efficieqt performance of the duties: and, by Article 67, that the officers so appointed should 
respectively perform such duties as might be required of them by the rules of the Poor 
Law Board, and such other duties, conformable to the nature of their offices, as the vestry or 
the direotors might lawfully require of them : and providing, by Article 88, that the dirtetora 
might at their discretion suspend any of the above-named officers, reporting the cause of 
such suspension to the Commissioners, who might thereupon remove it Held, on motion for 
a certiorari, that the Commissioners had, in Articles 66 and 88, exceeded their authority by 
unduly transferring powers from the vestrymen to the directors. Certiorari granted. 

Pbacook, in Hilary Term, 1851, moved for a certiorari to remove 
into this Court an order of the Commissioners dated 2l8t Noyember, 
1860. 

The order was addressed to the directors of the poor of the above 
united parishes, the vestrymen of the s^id parishes, the churchwardens 
and overseers, and the clerks to the justices of petty sessions held for 
the di**iBion in which the parishes are situate. After referring to stat. 
11 6. 4 & 1 W. 4 (local and personal, ^public), c. z.,(a) which it r«^^<» 
stated to contain various provisions for the appointment of ves- ^ 
trymen and directors of the poor, for administering relief to the poor, 

(a) See, M to this Aet, and the eonstltutioD of the united parishesi Regina v. Basset, ante, pb 



446 REGINA v. POOR LAW COMMISSIONERS. [H. V. 1851.] 

and for managing the workhouse of the *united parishes of St. Oiks 
and St. George ; and after reciting that « it is expedient that rulei and 
regulations should be prescribed for the more complete government and 
guidance of the said directors, the government of the said workhouse, 
and the appointment of the officers required for the due administration 
of relief therein ; and that the duties of such officers should be defined/* 
the order stated that the Board did thereby order, direct, and declare 
that the rules, orders, and regulations after mentioned should be 
observed in respect to the workhouse belonging to the said united 
parishes, and become imperative and binding on the parties concerned. 
Then followed 107 Articles, relating to the admission of paupers, the 
management of the paupers and of the workhouse, appointment of 
officers, their qualifications, tenure of office, remuneration, &c., their 
duties, generally and severally, and the receipt and payment of money 
by them. Among these articles were the following. 

Art. 1. Every pauper who shall be admitted into the workhouse, either upon his 
first or any subsequent admission, shall be admitted in some one of the following 
modes only ; that is to say : By a written or printed order of the directors, signed 
by their clerk. By a written or printed order signed by an overseer or assistant 
overseer of the parishes. By the master of the workhouse (or during his absence, or 
inability to act, by the matron), without any order, in any case of sudden or nrgsni 
necessity. Provided that the master may admit any pauper delivered at the work- 
house under an order of removal directed to the churchwardens and overseers of the 
said united parishes. 

^4.4.71 *^^' ^* ^0 pauper shall be admitted under any written or printed order 
•1 as mentioned in Art. 1, if the same bear date more than six days before the 
pauper presents it at the workhouse. 

Art. 3. If a pauper be admitted by the master or matron without any order, the 
admission of such pauper shall be brought before the Board of Directors at their 
next ordinary meeting, who shall decide on the propriety of the pauper's continuing 
in the workhouse or otherwise, and make an order accordingly. 

Art. 13. The directors shall not admit into the workhouse, or any ward of the 
same, or retain therein, a larger number or a different class of paupers than thM 
from time to time fixed by the Poor Law Board ; and in case such number shall at 
any time be exceeded, the fact of such excess shall be forthwith reported to the Poor 
Law Board by the clerk. 

Art 25. The paupers of the several classes shall be kept employed according to 
their capacity and ability ; and no pauper shall receive any compensation for his 
labour. 

Art. 64. The directors shall cause the workhouse and all its furniture and appox^ 
tenances to be kept in good and substantial repair ; and shall, from time to dme, 
^medy vrithout delay any such defect in the repair of the house, its drainage, warmth, 
or ventilation, or in the furniture or fixtures thereof, as may tend to injure the health 
of the inmates. 

Art. 65. We do declare, that, subject to the rules and v^^ations hereia eon- 
tained, the guidance, government, and oontrol of the workhouse, and of the oftoen, 
servants, assistantSi and paupers within such workhouse, shall be exercised by the 
said directors. 

Appointment of Officers, Art. 66. The vestrymen of the joint vestry shall, when- 
ever it may be requisite, or whenever a vacancy may occur, appoint fit personi to 
hold the under-mentioned offices, and to perform the duties respectively i 



17 ADOLPHUS & ELLIS. N. S. 447 

to them ; namely, 1. Master of^ the workhouse. 2. Matron of the workhouse. 
3. Chaplain. 4. Schoolmaster. 5. Schoolmistress. 6. Porter. 7. Medical officer 
for the workhouse. 8. Nurse. And also such assistants and servants as they or the 
directors, with the consent of the Poor Law Board, may deem necessary for the effi- 
eient performance of the duties of any of the said offices. 

Art. 67. The officers so appointed to or holding any of the said offices, as well as 
sll persons temporarily discharging the duties of such offices, shall respectively per- 
form such duties as may be required of them by the rules and regulations of the 
Poor Law Board in force at the time, together with all such other duties, conform- 
able with the nature of their respective offices, as the joint vestry or the directors may 
lawfully require them to perform. Provided always, that every regulation apply- 
ing to any officer holding his office under this order, shall apply to any officer of the 
like denomination appointed by the joint vestry or the directors, although such 
^officer may have been appointed before this order shall have come into r^^ j^q 
force. L ^° 

Art 68. Every officer, a^tstant, and servant to be appointed under this order, shall 
be appointed by a majority of the joint vestrymen present at a meeting of the Board, 
eonsisting of the usual quorum of such vestry duly convened according to the pro* 
vision of the said recited Act. Every such appointment shall, as soon as the same 
hM been made, be reported to the Poor Law Board by the olerk of the said vestry. 

Art. 69. No appointment hereafter to be made to any of the offices specified in Art. 
66, shall be made under this order, unless a notice that the question of making such 
appointment will be brought before th^ vestry has been given and entered on the 
minutes, at one of the two ordinary meetings of the vestry next preceding the 
meeting at which the appointment is made, or unless an advertisement giving notice 
of the consideration of such appointment shall have appeared in some public paper 
circulating within the county of Middlesex, by the direction of the joint vestry, at 
least seven days before the day on which such appointment is made : Provided that 
no such nptice or advertisement shall be necessary for the appointment of a servant, 
an assistant, or a temporary substitute. 

Art. 77. The vestry shall pay to the several officers, assistants, and servants ap- 
pointed to or holding any office or employment under this order, such salaries or 
remuneration as the Poor Law Board may from time to time direct or approve. 
Provided that the vestry, with the approval of the Poor Law Board, may pay to any 
officer or person employed by the vestry or directors a reasonable compensation on 
account of extraordinary services, or other unforeseen circumstances, connected with 
the duties of such officer or person or the necessities of the workhouse. 

Art. 78. The salary of pvery officer or assistant appointed to or holding any office 
or employment under this order, shall be payable up to the day on which he ceases 
to hold such office or employment, and no longer. 

Art. 79. An officer who may be suspended, and who may without the previous 
removal of such suspension be dismissed by the Poor Law Board, shall not be 
entitled to any salary from the date of such suspension ; and no officer who shall be 
temporarily suspended from his office by reason of his services notr being required, 
shall be entitied to any salary pending such temporary suspension. 

Art^ 83. Every officer appointed to or holding any office under this order, other 
than the Medical officer of the workhouse, shall continue to hold the same until he 
die, or renign, or be removed by the Poor Law Board, in conformity with the pro- 
visions of the law in that behalf, or be proved in a manner satisfactory to the Poor 
Law Board to be insane. 

Art. 84. Provided always, that every porter, nurse, assistant, or servant, jnay be 
dismissed by the vestrymen without the consent of the Poor Law *Board ; r^i^^A 
but every such dismissal, and the grounds thereof, shall be reported to the I- 
Poor Law Board. 
Art. 85. If any master and matron hereafter appointed be husband and wife, and 



449 REGINA t;. POOR LAW COMMISSIONERS. [H. V. 1851] 

one of them should be dismissed by order of the Poor Law Board, or should othe^ 
wise vacate his or her office, or should die, the other or survivor shall, at the ezpin- 
tioD of the then current quarter, cease to hold his or her office of master or matron, 
as the case may be. 

Art 87. Every medical officer duly appointed shall, unless the period for which 
he is appointed be entered on the minutes of the vestry at the time of making saeb 
appointment, or be acknowledged in writing by such medical officer, continue in 
office until hfi may die or resign, or become legally disqualified to hold such office, or 
be removed therefrom by the Poor Law Board. 

Art. 88. The directors may at their discretion suspend from the discharge of hit 
or her duties any master, matron, schoolmaster, schoolmistress, or medical officer; 
and shall, in case of every such suspension, forthwith report the same, together with 
the cause thereof, to the Poor Law Board ; and if the Poor Law Board remove the 
suspension of such officer, he or she shall forthwith resume the performance of bU 
or her duties. 

Art. 90. When any officer may die, resign, or become legally disqualified to pe^ 
form the duties of his office, the vestry shall, as soon as conveniently may be after 
such death, resignation, or disqualifieation, give notice thereof to the Poor Law 
Board, and proceed to make a new appointment to the office so vacant in the manner 
prescribed by the above regulations. 

Notice of motion for a certiorari, to be made by the vestry clerk of 
the united parishes under the authority of the vestrymen, was served 
upon the Poor Law Commissioners. The grounds of motion vrere stated 
generally to be that the order was illegal and void, as going beyond the 
authority vested in the Commissioners by stat. 4 & 6 W. 4, c. 76, or 
any other statute, and as being inconsistent with, and contrary to, stat. 
11 G. 4 & 1 W. 4, c. X, The notice stated also the following objections 
to particular Articles. 

To Articles 1, 2, and 8 : That they attempt improperly to limit, re- 
strict, and control the powers and authorities given to the directors of 
♦d^01 ^^^ P^^^ ^^ ^^^ ^^^^ united parishes, and to give improper powers 
-* and ^authorities to the overseer or assistant overseer of the said 
parishes. 

To Article 13: That it attempts improperly to limit, restrict, and 
control the powers and authorities given to the directors of the poor of 
the said united parishes. 

To Article 25 : That it improperly orders that no pauper shall receive 
compensation for his labour ; and also thereby improperly attempts to 
limit, restrict, and control the powers and authorities given to the 
directors of the poor, &c. 

To Article 64 : That it attempts improperly to take away, restrict, 
or control the jurisdiction, powers, and authorities given to and vested 
in the vestrymen and vestry of the said united parishes and of the said 
parishes ^respectively, and to add and transfer to the said directors 
powers and authorities to which they are not and cannot be entitled; 
and to add to the jurisdiction, powers, and authorities lawfully giveu 
to and vested in the said Poor Law Board and Poor Law Commissioners. 

To Article 65: That it attempts improperly to take away, restrict, 
or control the jurisdiction, powers, and authorities given to and vested 



[*451 



17 ADOLPHUS & ELLIS. N. S. 450 

in the vestrymen and vestry of the said united parishes, and of the 
said parishes respectively, over and relative to the said workhouse and 
the officers, servants, assistants, and paupers within the same, as well 
as to give improper powers and authorities to the said directors. 

To article 66 : That it attempts improperly to take away, restrict, and 
control in some respects the jurisdiction, powers, and authorities given 
to and vested in the vestrymen and vestry of the said united parishes 
and of the said parishes respectively, and in other ^respects to 
add to such jurisdictipn, powers, and authorities : And that it 
also attempts improperly to take away, restrict, or control the power 
and authority given to and vested in the directors of the said parishes. 
To Articles 67, 68, 69, 77, and 79 : That they respectively attempt 
improperly to take away, restrict, or control the jurisdiction, powers, 
and authorities given to and vested in the vestrymen and vestry of the 
said united parishes and of the said parishes respectively, and to add 
to the jurisdiction, powers, and authorities lawfully given to and vested 
in the said Poor Law Board and Poor Law Commissioners. 

To Articles 83, 85, 87, 88, and 90: That they respectively attempt 
improperly to take away, restrict, or control the jurisdiction, powers, 
atid authorities given to and vested in the vestrymen and vestry of the 
said united parishes and of the said parishes respectively, and given to 
and vested in the said directors, and to add to the jurisdiction, powers, 
and authorities lawfully given to and vested in the said Poor Law Board 
and Poor Law Commissioners. 

The motion was grounded on an affidavit of the vestry clerk, Mr. 
Rohinson, stating that, in order to the due administration of the affairs 
of the said united parishes under the local Act, the under-mentioned 
offices were existing at the time of the notice ; and that all the persons 
filling the said offices had been either expressly appointed by the said 
Act, or had been continued, elected, or appointed by the vestrymen of 
the joint vestry under the provisions of the said Act. 

Directors of the poor, twenty-four in number, being yestrymen, over and above 
the rectors and churchwardens of the said united parishes for the time being, who 
are by virtue of their respectiTO offices appointed ^directors by the said Act. r^^j^eo 
One Festry clerk. One governor or master of the workhouse. One matron •- 
of the workhouse. One chaplain. One medical superintendent One apothecary. 
One assistant surgeon. One schoolmaster. The office of schoolmistress is at this 
time vacant. One assistant overseer. Two relieving overseers. Four collectors of 
poor rates. One paymaster. Two beadles. Two engine-keepers. One matron of the 
iofant establishment. One surgeon of the same. One teacher at the same. One 
superintendent of the schools at the same. 

Peacock, in moving, referred to sects. 51, 61, 62, 72, of stat. 11 0'. 
4 4 1 W. 4, c. x.,(a) and relied upon the *several objecti^s r-i^AKo 
pointed oot in the notice. He contended in particular that Arts. *- 

(a) Tbe following elanses of stat. 11 O. 4 A 1 W. 4. e. z. were cited in the oonrse of the 
Sf^meot. 
Sects. 7 and 8 appoint fortj-flre vestiymeo, including the rector and ebvrehwardeniy f «r each 

VOL, XVII.— 87 2B 



453 REGINA v. POOR LAW COMMISSIONERS. [H. V. 1851.] 

*i^l 66 and 67 exceeded the *authority given to the Poor Law Com- 

-* missioners by stat. 4 &r 5 W. 4, c. 76, sects. 15 and 46 ; that, 

^. ---. under *the local Act, the appointment and removal of infe- 

-' rior officers was intrusted to the vestrymen ; and that the 

of the respectiye parishes; and sects. 12 (see p. 343, note (d), ante), 13, 14, provide for tbe 
aDnaal election of their successors, forty-two for each parish, exclusive of the rector and two 
churchwardens of each for the time bein|f, who, by sect 12, are to be vestrymen rirtate officii 

Sect 38 enacts : " That it shall be lawful for the vestrymen of each of the said parisbtf 
severally, from time to time, at any of their meetings, to make such rules and orders as to tbem 
shall seem right for regulating the elections of their respective officers and servants, and for the 
good government of such vestrymen, officers, and of all other persons employed under nieli 
respective vestrymen in the execution of this Act» and from time to time to alter or to repeal 107 
such rales and orders, and to make others, and to impose such reasonable fines and pensltiM 
upon all persons offending against the same, as to them shall seem expedient, not exceedinf the 
sum of 5/ for any one offence," Ac 

Sect 51 enacts : " That the vestrymen of the said joint vestry may from time to time elwt 
and appoint such and so many treasurers, bankers, chaplains of the workhouse, clerks, goveraon, 
matrons of the workhouse and matrons of the infant establishment, paymasters, collectorf of 
the rates for the relief of the poor, assistant overseers, and beadles, together with such and 10 
many other officers, agents, servants, and persons, as they shall think proper; and shall tike 
such security of the treasurers, collectors, or other receivers of money to be continued or appoiated 
under this Act, for the faithful execution of their respective offices, as such vestrymen shall tluok 
proper ; which securities may be taken either in the name of the vestry clerk of the said joint 
vestry or in the names of any five or more of the said vestrymen ; and the said vestrymen may slso 
from time to time suspend or remove any of the persons so continued, elected, or appointed, sad 
appoint others in the place of those suspended or removed ; and such vestrymen shall order 
such salaries and allowances to be paid out of the money to be raised for the relief of the poor, 
to such persons so continued, elected, or appointed as aforesaid, as they shall think proper; a&d 
. the several assistant overseers of the poor who shall be appointed under the authority of this Act 
are hereby empowered to execute all such of the duties of the office of overseer of the poor ss 
shall be directed by the vestrymen of the said joint vestry, in like manner and as fully to all 
intents and purposes as the same may be executed by law by any overseer of the poor : prortded 
always, that no appointment of any chaplain to the workhouse shall be valid, unless approved 
of by the rectors of the said parishes, and such chaplain be licensed by the bishop of the dioceie.** 

Sect 53 enacts : '* That every such officer and other person so continued or appointed by the 
vestrymen of the said joint vestry shall, at such times and in such manner as the said vestrj- 
men shall direct, deliver to the said vestrymen, or to such persons as they shall appoint, tme simI 
perfect accounts in writing of all matters and things committed to his or her charge by virtue 
of this Act," Ac. 

Sect 58 enacts that the vestrymen of the joint vestry shall annually, on, Ac, choose tro or 
more inhabitant householders from each parish to be overseers of the poor of the said psrishet 
respectively, upon or after which nomination it shall be lawful for any two justices for the coasij 
to appoint and confirm such persons as overseers respectively ; ''and when and so soon as cnrb 
confirmation shall have taken placp such persons shall be overseers of the poor of the respective 
parishes, together with the churchwardens of the said respective parishes, and shall eontioBe 
until others shaU be appointed^ in their place, and shall and may, together with the ebnreb- 
wardens of the said respective parishes, execute all and every the powers and duties beloogisi^ 
to the office of overseer of the poor, except the power of making rates for the relief 6f tbe pocfr 
or for any other purposes, and except the powers by this Act given to the said vestrymen, or to 
the directors of. the poor, to be appointed in manner hereinafter mentioned; and all notices 
directed by any Act of Parliament, or otherwise, to be given or made to the overseers of tlr 
poor for any purpose may be given and made to such overseers, or to any churchwardea of 
either of the said parishes, or to the vestry clerk or clerks of the said joint vestry : Prorided 
always, that whenever an assistant overseer or overseers shall have been nominated sod 
appointed as hereinbefore authorised, neither the churchwardens nor the said overseer ebsll 
interfere oAntermeddle ii»or with the care, management, relieving, employment, or mainteaanH 
of the poor of the said parishes in any case, except under the orders of the said vestrymen or of 
the directors of the poor ; and all such overseers and assistant overseers as aforesaid sbsS 
severally and respectively, in the execution of the duties of their office, act in all thiugs oader 
the control and directions of the said vestrymen or of the directors of the poor." 

Sect 01 enacts : " That it shaU be lawful for the veatrymen of the said joint vestry from iSmt 



17 ADOLPHUS & ELLIS. N. S. 456 

^Commissipners could not transfer this power to the directors, r^Afift 
whose duties, under the local Act, were those of churchwardens ^ 
and overseers ; and that the Commissioners, under stat. 4 &; 5 W. 4, c. 

to time to in*ke raoh roles and orden as to them Bball seem right for the election and good 
forernment of the directors of the poor, and of all oflBcers, servantfi, and other persons employed 
snder the said vestrymen or under the said directors in the ezecation of this Act, and from time- 
to time to alter or repeal any snoh rales and orders, and to make others, and to impose snch 
reasonable fines and penalties upon all persons offending against the same as to them shall seem 
ezpedienty not exceeding," Ac 

Sect 62 enacts : ** That the restrymen of the said joint Testry shall, at their first meeting to 
be held under this Act, or at one other meeting to be held within twenty-one days next after the 
paning of this Act, nominate and elect twelve persons, being at the time of the passing of this 
Act vestrymen of the said parish of St Qiles in the Fields, and twelve persons, being at the time 
of the passing of this Act vestrymen of the said parish of St George Bloomsbnry ,* and the 
persons so nominated and elected shall be the directors of the poor of the parishes of St Giles in 
the Fields and St George Bloomsbury, and shall continue in oflSce until other directors shall 
be elected in their room in manner hereinafter mentioned.'' 

Sect 63 enacts: "That it shall be lawful for the vestrymen of the said Joint vestry and they 
sre hereby required, on the twenty-fifth day of March in each and every year, or within one 
calendar month after, to elect twelve persons, being vestrymen of the said parish of St Giles in 
the Fields, and twelve persons, being vestrymen of the said parish of St George Bloomsbury, 
to be directors of the poor of the said parishes of St. Giles in the Fields and St. George Blooms- 
baryforone year, or until another annual election of directors shall take place:" every such 
director to be re-eligible immediately or at a future election. 

Sect 64 enacts that when and so often as any director shall cease to be a vestryman he shall 
thereupon become disqualified to act as a director : and it provides for new elections by the 
vestrymen to fill up casual vacancies. 

Sect 65 enacts that the rector and churchwardens for the time being of each parish shall be 
director! virtnte oflicii. 

Sect Tl vests in the directors the property in ell goods, Ac, provided for the use of the poor 
and for carrying out the purposes of this Act relating to them, and empowers the directors to 
prefer indictments and bring actions in respect of such goods, using the name of the vestry 
clerk or any of the vestrymen. 

Sect 72 enacts: "That the directors for the time being of the poor of" Saint Giles in the 
Fields and St George ** shall and may exercise all the powers and authorities relating to the 
relief, maintenance, and employment of the poor of the said parishes which churchwardens and 
OFerseers of the poor or guardians of the parish poor children are or shall be by law authorised 
to exercise." 

Sect 73 enacts : " That the several laws relating to the overseers of the poor, and for the 
relief, maintenance, and employment of the poor, shall continue in force within the said parishes 
of St Giles in the Fields and St George Bloomsbury, except where the same are altered or are 
inconsistent with this Act." 

Sect 74 aathorixes the direetors to make oontraots for repairs of the workhouse, Ac, for pro- 
viding ftimitnre, goods, Ac, for the maintenance of the poor in such workhouse, Ac, and for 
works generally to be done under the authority of this Act ; regulates the making of such con- 
tracts, and empowers the directors to sue upon them, and to compound such suits. 

Sect 77 enacts : " That aU assistant overseers, constables, beadles, and other parish ofllcers of 
the said joint vestry shaU fh>m time to time and at all times hereafter, in the execution of their 
respective offices, aid and assist the said directors to the best of their power, and.shall at all 
times obey their orders and directions in all matters relating to the relief, maintenance, and em- 
ployment of the poor :" under penalties in case of neglect or refusal. 

Sect 80 enacts : " That it shaU be lawftil for the said directors to cause any person received 
into the Vorkhonse of the said parishes to be employed in any work, trade, or manufacture, or 
otherwise as they shall think proper, during the time be or she shall continue in such workoouse 
(any Uw or usage to the contrary notwithstanding) ; and out of tSie profits arising fh>m any 
work which may be performed by such penons such gratuities or rewards may be distributed to 
the industrious and skilful, according to the quantity and perfection of their work, a^ to the 
said directoTB shaU appear proper ; and the remainder of such profits shall be applied by the 
said directors in aid of the rate for the relief of the poor of Che said parishes." 



456 REGINA t;. POOR LAW COMMISSIONERS. [H. V. 1851.] 

76, might control the yestrymen by their rules, bat could not take from 
them the powers given by their* own Act ; citing Rex v. The Poor Law 
Commissioners, In the matter of the Parish of St. Pancras, 6 A. & £. 1 
(E. G. L. R. vol. 83). And he pointed out that the proviso of Art. 67, 
coupled with Art. 83, empowered the Commissioners to remove or retain 
officers appointed by the vestrymen, upon whatever terms, before the 
making of this order. 

In the same term (January 30th), (a) 

Sir A. J. E. Cockbumj Solicitor-General, OrompUm and Tomlimon 
showed cause. — The order of the Commissioners may be a good exercise 
of the general powers vested in them by stat. 4 & 6 W. 4, c. 76, sects. 
15, 21, 42, 46, 48 (explsined, as to the word « Ghiardian" by sect. 109), 
though it may be inconsistent with some provisions of the local Act. 
The power to make rules, conferred upon the vestrymen by the local 
Act, sect. 38, is given by sect. 42 of the general Act to the Commis- 
sioners. [Lord Campbell, C. J. — One statute expressly controls the 
other.] The Commissioners, under sect. 48 of the latter Act, may re- 
move officers, which power, by sect. 51 of the local statute, is in the 
vestrymen : but such partial inconsistencies do not invalidate the orders 
to be made by the Commissioners. It was indeed held in the St. Pan- 
eras case, 6 A. &; E. 1 (E. C. L. R. vol. 33), (where particular reference 
*l^7l was made to sect. 39 of stat. 4 & 5 W. 4, c. 76), that the "^Gom- 
-* missioners could not alter the whole constitution of an existing 
parochial Board; but Rex v. The Poor Law Commissioners, In the 
matter of the Whitechapel Union, 6 A. & E. 34 (E. C. L. R. vol. 33), 
shows that it may be very materially interfered with. A very large 
controlling power was recognised in Regina v. Poor Law Commissioners, 
In the matter of Brighthelmston, 3 Q. B. 325 (E. C. L. R. vol. 43), where 
the Commissioners, in effect, issued an injunction. The view on the 
other side, as to the power given to the directors by the local Act, is 
too confined. The Act does not define the respective authorities of the 
vestrymen and directors very clearly ; but it seems designed that the 
directors shall have the actual management of the poor as an executive, 
the vestry electing the directors, and controlling the management by 
rules. (Sects. 51, 58, 61, 62, 65, 71, 72, and 80 of stat. 11 G. 4 & 1 
W. 4, c. X., were cited in this part of the argument.) That the power 
given by statute to the vestrymen, in the appointment of officers, does 
not preclude the Commissioners from exercising any such power, ap- 
pears from Regina v. The Poor Law Commissioners, Allstonefield In- 
corporation, 11 A. k E. 558 (E. C. L. R. vol. 39) (though not»a pre- 
cisely similar case)^ Regina v. Governors of St. Andrew, 6 Q. B. 78 
(E. C. L. R. vol. 51), Regina v. Governor, &c., of Poor of Bristol, IS 

(a) Before Lord Campbell, C. J., Coleridge and Wightmuiy Ji, 



17 ADOLPHUS & ELLIS. N. S. 457 



[*458 



Q. B. 405 (E. C. L, R. vol. 66), Reginai'. Guardians of Poor of 
Oxford.(a) *A leading object of the general Act is uniformity 

(a) TomliiuoH eited this ease (not published in the Queen's Bench Reports) from The Ju8tio« 
of the Peace, Vol. 8, p. 710. The following is a short report of the facts, argument and judgment. 

The QUEEN «. The Guardians of the Poor of the City of OXFORD. [May 22, 1844.] 

OoArdians of a poor law district, acting under a local statute which empowered them or any 
fire or more of them to appoint oflSoers, appointed a master of the workhouse for a year, and, 
on its expiration, re-appointed him for another year. During that year the Poor Law Commis- 
rionen made an order, under stat 4 A 5 W. 4, c. 76, requiring the guardians from time to 
time, on the occurrence of any vacancy, to appoint certain officers (among whom was a master 
of the workhouse) by a majority of the guardians present Afterwards, and before the 
master's last-mentioned year of office had expired, the guardians passed a resolution that 
their officers were officers during pleasure, and that no annual election should take place. This 
resolution was not sanctioned by the Commissioners under stat. 4 A 6 Vict o. 76, k. 22 ; and 
liter the expiration of the year of office they ordered the guardians to appoint a master of the 
workhouse, which was not don% 

Held, on motion for a mandamus, that the first-mentioned order of the Commissioners was within 
their general jurisdiction under stat 4 A 5 W. 4, c 76 ; that the resolution of the guardians, 
unsanctioned by the Commissioners, could not be alleged in answer ; and that there was, at 
the end of the second year of office, a vacancy which ought to have been filled up as the Com- 
missioners had directed. 

ToMLiirgoH, in Hilary term, 1844, obtained a rule nisi for a mandamus calling upon the 
sboTe-named guardians to appoint a proper person to be master of the workhouse, pursuant to 
two orders of the Poor Law Commissioners. 

The gliardians are incorporated by stat 11 G. 3, o. 14, s. 1, and are, by sect 8, empowered 
and required to hold certain periodical Courts or assemblies. Sect 27 enacts ''that the said 
ga&rdians or any five or more of them, shall, and hereby have power and authority, in any of 
their said Courts or assemblies, to nominate, appoint, and employ, from time*to time, such 
person or persons as they shall think proper, to be and officiate as clerk, assistant, master, matron, 
beadle, or porter, or in any other office or place which shall be thought needful by the said 
goardians, and, from time to time, to remove and displace such person or persons as they shall 
fiDd cause ; and upon the death or removal of them, or any of them, to choose others in their 
place ;'' and to pay reasonable salaries to such officers out of the stock of the said Corporation 
and the rates to be raised under this Act * 

The Poor Law Commissioners made, and sent to the guardians on August 17th, 1843, an order,' 
doted on the previous day, containing these Articles. 

" Art 60. For the performance of the duties and insuring the observance of the regulations 
herein set forth, the guardians shall as soon as may be requisite, and firom time to time hereafter 
upon the oecnrrence of any vacancy, appoint all or any of the following officers ; that is to say 
—« master of the workhouse, a matron of the workhouse, a chaplain, a schoolmaster, a school- 
mistress, a Medical officer for the workhouse, a porter ; and also such assistants and servants as 
shall be necessary for the efficient performance of the duties of the said several offices. 

"Art 61. The officers so appointed to or holding any of the said offices shall respectively 
perform such duties as are hereinafter set forth, together with all such other duties, conformable 
vith the nature of their respective offices, as the said guardians shall lawfully require them to 
perform. Provided always that every regulation applying to any person holding any office under 
this order shall apply to every officer, assistant, or servant, who may have been duly appointed 
for the workhouse by the gnardians, although such officer may have been appointed before this 
order shall have come into force. 

" Art. 62. Every officer, assistant, and servant to be appointed under this order shall be 
appointe<^v a majority of the guardians present at a m'eeUng, and every such appointment 
«baiJ, AS ^H as the same shall have been made, be reported to the Poor Law Commissioners." ' 
Art 63 directed that no appointment to one of the offices above named (except the last) should 
be made under this order, " unless notice that such appointment will be made, shall have been 
given at one of the two weekly meetings next preceding the meeting at which the appointment 
shall be made," or unless an advertisement giving notice of it shall have appeared in a public 
paper, Ac. (as prescribed by this Article). 
Art 68 directed that every person appointed to an office under this order (with exceptions not 

2b2 



458 REGINA v, POOR LAW COMMISSIONERS. {R: V. 1851.] 
^^f q<, of system ; the objections here taken tend to defeat that *object. 



*469] 



As to the removal of officers, Erie, J., held, in Ex parte Teather, 



*4601 ^ I^owJ^dcs, M. & P. 7, that the Poor Law Commissioners *might, 
-* at their discretion, dismiss the relieving qfficer of a union, and 

materia! bore) should " eondnue to hold the'samo until he" should "die, or resign, or be 
removed by the Poor Law Commissioners." 

The Commissioners made another order on November 11th, 1843, which was served upon tbe 
guardians on the 12th, directing them within one month to appoint a fit and proper person to b« 
master of the workhouse belonging to their incorporation. No appointment was made la 
pursuance of this order. » 

It Appeared that, on the 25th September, 1840, the guardians appointed Charles Price master 
of the workhouse for one year from the 29th of that month. On 25th September, 1841, they 
again appointed him for one year from the 29th : and on 22d September, 1842, they " re-elected" 
him, as appeared by an entry in their books, "for the ensuing year upon the terms of last year." 
No subsequent appointment took place ; but, on 21st September, 1843, the guardians, at a wecklj 
meeting, passed a resolution, as appeared by their books : " lUiat the officers of this establish- 
ment are officers during pleasure ; and that no election take place at an annual election.*' And 
the governor of the Board of Guardians stated, on affidavit in answer to the present rule, *' that, 
in pursuance of this resolution, the said Charles Price is now the master of the said workboan, 
and as such performs the duties attached to the office." The resolution was not submitted to tfa« 
Poor Law Commissioners or approved by them. They had not made any complaint to tke 
guardians of the unfitness of Price to be master. 

Erie and Thoma» now showed cause. — There was no vacancy at or after the time when this 
order was made. Before the third year expired, the guardians ordered that the office should be 
held during pleasure. That operated' like enlarging an estate. [Colbridoe, J. — Was not it » 
new appointment? On the 30th of September the master hold under a new order.] There vas 
no point of time at which the office was vacant. Unless there was a vacancy, the fonndstioD 
of this rule faita. [Colbrioob, J., referred to Rex v. The Mayor, Ac, of Bridgewater, A. ^ £• 
339 (E. C. L. R. vol. 33).] (Sir F. Thetiger, Solicitor- General, in support of the rule, pointed 
out that the resolution of September 21st, 1843, was one of the *' rules, orders, and regulations" 
menUonod in stat 4 A 5 W. 4, o. 76, s. 22, and had not been sanctioned by the Commissioners 
as that clause requires.) Orders of the class contemplated by that section relate merely to the 
detail of administering relief to the poor. This resolution is grounded upoi^sect 27 of the loctl 
Act, which invests the guardians with a discretionary authority to determine what officers (of the 
kind in question) are wanted, and to appoint them as they think proper. The Commissioners 
cannot (at least without incorporating the district in a union) annul the constitation uoder 
which the guardians act; Rex v. The Poor Law Commissioners, In the matter of the Parish of 
St. Pancras, 6 A. 1 E. 1 (E. C. L. R. vol. 33) ; and the present order would, aa far as it goes, 
have that effect It may be observed that the election, by the local act, s. 27, is to made by the 
guardians or any five or more of them ; the order (Art 62) requires an appointment by the 
majority present 

8ir F. Thenigefy Solicitor-General, and 7V>m/in«on, control, were not called upon to argne. 

Lord Dbxm4N, C. J. — There is no doubt in this case. There was a racancy at the expiratioa. 
of a year, which could be filled op only according to the regulation of the Commissioners, if thrt 
had power to make it ; and the case cited for the defendants does not show, nor is it shown b? 
any authority, that they had not There being, then, a vacancy which has never been fiUeil ap 
the rule must be absolute. 

Patteso!!, J. — The power of the Commissioners to direct a appointment of officers, nndet 
Stat 4 4fc 5 W*. 4, 0. 76, s. 46, extends to " any parish or union," not excluding those which hsr« 
local Acts. I think the order of 17th August was binding, and that the subsequent rescla- 
tion was a mere attempt to evade it.* 

WiGHTUAN, J. — Mr. Thomtu has argued that this order was an attempt to intei^^ with the 
constitution of the Board of Guardiansi It is not so : it merely direcu the appoinKent of an 
officer, whose office is immediately connected with the administration of relief to the poor. 

CoLBRiDOB, J. — There was a vacancy in this office, unless the resolution of September 3l9t 
which Mr. Erie says anticipated the order of the Commissioners, yru valid. But there is a*> 
doubt that this resolution was an order or regulation under the local Act within the meaoiof of 
Stat 4 A 5 W. 4, c. 76; and being so, it had no validity until confirmed by the Comaii- 
sinners. Rule absolute. 



17 ADOLPHUS & ELLIS. N. S 460-. 

that without complaint or hearing. If the ^preceding argument r^A^^ 
is correct, the objection to the proviso of Art. 67, as applying ^ 
to persons already in office, is unfounded. There is no transfer of 
powers by these Articles. Art. 66, in effect, only authorizes the Com- 
missioners, an an emergency, to appoint assistants and servants upon 
the representation of the directors ; this may lessen the authority of 
the vestrymen, but does not transfer it to the directors. Art. 67 en- 
forces the performance of such duties only as the officers are already 
bound to by the local Act. (The objections to some other Articles were 
shortly discussed ; but the judgment of the Court makes a fuller report 
of the argument unnecessary.) 

Sir JT. Kelly and Cowlingj contrd., cited the judgment of Coleridge, J., 
in the case of the parish of St. Pancras, 6 A. & £. 1 (E. C. L. R. vol. 
33). They contended that the enactment of stat. 4 and 5 W. 4, c. 76, 
8. 46, empowering the Commissioners to direct an appointment of officers 
by « overseers or guardians," *did not apply to this case; that, r«^/>9 
by the interpretation clause, sect. 109, <( Guardian'* was stated '- 
to mean «<any visitor, governor, director, manager, acting guardian, 
veitrymarij or other officer in a parish or union, appointed or entitled 
to act as a manager of the poor, and in the distribution or ordering of 
the relief,*' &c.; but that this applied to vestrymen and others officiat- 
ing merely in the relief and management of the poor, as under stat. 59 
G. 3, c. 12, s. 1 ; whereas the vestrymen under the present local Act 
were the representatives of the parish generally for the purposes of the 
Act; and that giving a direction to them was giving it to the parish, 
which the Commissioners had no authority to do ; and that this made 
the Allstonefield (11 A. & E. 658 (E. C. L. R. vol. 39)), St. Andrew's 
(6 Q. B. 78 (E. C. L. R. vol. 51)), and Oxford (ante, p. 457, note(a)) cases 
inapplicable. They relied upon the general provision of stat. 11 G. 4 
& 1 W. 4, c. X., s. 73. And they urged that the power of actually 
suspending officers, given by Art. 88 to the directors, was a distinct 
transfer of authority to them, which the Commissioners could not law- 
fully order. They also noticed Art. 25 as an instance in which the 
order of the Commissioners directly contradicted the local Act (sect. 
80). (A further report of the argument in support of the rule is unne- 
cessary.) Cur, adv. vulL 

CoLERiDGB, J., BOW delivered the judgment of the Court. After 
stating the nature of the application, his Lordship said : 

We have considered the case, and are of opinion that in one respect 
the or%r, which embraces a great number of particulars, trans- r^Atio 
cends the power of the ^Commissioners ; and therefore that the ^ 
rule mast be made absolute. 

These parishes were governed, as regarded the relief of the poor, by 
a local Act, 11 G. 4 & 1 W. 4, c. x., until the passing of the Poor L&w 
Amendment Act, 4 & 5 W. 4, c. 76. Very soon after the passing of 



463 REGINA v, POOR LAW COiMMISSIONEBS. [H. V. 1861.] 

the latter Act, this Court had occasion to consider whether it applied, 
and to what extent, to parishes previoasly nnder the government of 
local Acts ; and the decisions then come to will be found to furnish the 
principle which must govern us in the present case. That principle is 
this. The Legislature intends to introduce uniformity in the modes of 
governing and relieving the poor throughout the kingdom ; for this par- 
pose the Qommissioners have a jurisdiction, which attaches everywhere, 
and is not ousted by the operation of any local statute ; the authorities 
constituted by such statute mu^t act for the future in subordination to 
the Commissioners ; the rules made from time to time by the latter will 
overrule any conflicting rules previously made by the former ; nor can 
the former make any binding rules for the future, but under the sanc- 
tion of the latter ; the Commissioners, however, cannot put an end tc, 
set aside, or alter the relations inter se of the local authorities. To 
adopt the words of one of the judgments pronounced in Rex v. St. Fan- 
oras, 6 A. & E. 9 (E. C. L. R. vol. S3), which has ever since been con- 
sidered a leading case on this point, the local authorities ««may be 
guided and controlled," <(but the management of the poor cannot be 
taken from them." This conclusion, was arrived at by a careful exami- 
nation of the clauses of the Act, and iray now be considered settled, so 
^iAOA-i as to make it unnecessary to go through that ^examination 
^ again. Our business is now to apply the principle to the different 
particulars of the present order which were objected to. Whatever 
merely regulates or controls the relief or management of the poor, or 
the government of the workhouse, or merely guides or controls vestry- 
men or parish officers, wmII be within the powers of the Commis- 
sioners ; if any particular substantially alters the machinery which the 
local Act erected for the administration of the law, that will be beyond 
them. 

We think that the Articles 66 and 88 in this order fall within the 
latter predicament. The former commences a section with the title 
« Appointment of officers ;" and by it the vestrymen of the joint vestry 
shall appoint to certain offices named, and also «< such assistants and 
servants as they or the directors^ with the consent of the Poor Law 
Board, may deem necessary for the efficient performance of the duties 
of any of the said offices." By the latter ^^the directors may at their 
discretion suspend from the discharge of his or her duties any master, 
matron, schoolmaster, schoolmistress, or medical officer ; and shall, in 
case of every such suspension, forthwith report the same, together with 
the cause thereof, to the Poor Law Board," &c. The effect of tUkse is, 
with regard to the appointment, to make the directors at least co-ordi- 
nate with, if not to'place them over, the vestrymen; for the vestrymen 
must appoint, even against their own judgment, if the directors, with 
the consent of the Poor Law Board, require it. With regard to suspen- 
aion from discharge of duties, the whole discretion is placed in the first 



17 ADOLPHUS & ELLIS. N. S. 464 

instance with the directors ; and the vestrymen have no voice whatever 
in the matter. Now, by section 51 of the local Act, the power of 
appointment, of suspension and removal, of the ^greater part of r« 4 /*e 
the officers named in Article 66, together with «« such and so many *- 
other officers, agents, servants, and persons, as they shall think pro- 
per,'* is placed in the vestrymen. The directors themselves are a body 
whom, by section 63, the vestrymen are to elect annually ; ayd by sec- 
tion 72 they are to exercise the powers relating to the relief, main- 
tenance, and employment of the poor which churchwardens and over- 
seers of the poor are by law authorized to exercise. The vestrymen, 
therefore, by the scheme of the Act, had in them the superior, control- 
ling power ; under them the directors were the executive body. We are 
not to consider whether it would be more expedient to vest in this body 
such powers as are sought to be given to them by the articles in ques- 
tion ; but it is clear that the end cannot be lawfully attained by a trans- 
ference of them from the vestrymen to the directors by the mere order 
of the Commissioners. 

This disposes of the present rule. With regard to the other articles 
objected to, we have considered them, and we are of opinion that some 
of them do not conflict with the provisions of the local Act, and some 
do, but only in such matters as stat. 4 & 5 W. 4, c. 76, puts within the 
power of the Commissioners by the 15th section ; that is, they, are 
orders or regulations either for the management of the poor, or the 
government of the workhouse, or the guidance and control of guardians, 
vestries, or parish officers. These are matters in which the Commis- 
sioners are authorized to act, even if by so doing they interfere with 
the provisions of the previously existing laws. 
The rule therefore will be absolute. Rule absolute. 



VOL. xvn. — 88 



466 BEGINA v. BOBINSON. T. T. 1851. 



*466] *The QUEEN v. JIOBINSON. June 17. 

The QUEEN v. The Goveraors and Directors of the Poor of ST. 
JAMES, WESTMINSTER 

An order of the Poor Law CommiMionert may (like an order of joitioea) be qoaahed in part oo 
certiorari, if the parts be sufficiently divisible. 

On motion for* a certiorari to remove an order of the Commissioners contaioing several distioet 
Articles, the Court granted the writ, pronouncing an opinion that two of the Articles wers 
illegal. The Commissioners made an order rescinding these, and gave notice of it to the 
parochial body which had obtained, the certiorari. The order was then brought up under the 
writ. 

Held that, in this state of proeeedings, it was not necessary to qnash the rescinded parts of th« 
order, but that the Court might qnash, or refuse to quash, the whole residue or any part of iL 

Held also that an Article of the above order, directing that every officer appointed to or holding 
any office under the said order (which related to the government and oare of the poor ia 
a Poor law district) should continue to hold office till death, resignation, or removal by ths 
Poor Law Board, was not beyond the authority conferred by staL 5 A 6 W. 4, e. 76, a 4(, 
although applied to a parish in which, by a prior local Act, the governors of the poor had tb« 
power of dismissing the officers. 

But, Held that the above clause did not operate to keep a party in office without re-eleetion, 
who had been appointed by the directors of the poor (authorised by their local Act) and not 
under the order. Although by an earlier Article it was provided that "every regulatum' 
applying to any officer holding office under this order, should apply to any officer of the 
like denomination appointed by the directors, though appointed before the order vboald hare 
come into force : the term ** regulation" being construed as referring to a clause immediately 
preceding, which required that the officers appointed by the directors should respectiTelv 
perform such duties (described in other parts of the order) as might be required of them by 
the rules and regulationt of the Poor Law Board in force at the time. 

Quare, Whether, in such an order, the Commissioners could, under stat. 6 A 6 W. 4, o. 76, ebange 
the term of an officer appointed before the making of the order trom an annool holding to a 
holding for life. 

The QUEEN v. ROBINSON. 

After the decLsion in the last preceding case, the Poor Law Com- 
missioners made another order, addressed as before, dated 24th March, 
*j.fi7l ^^^^' ^^ recited *the making of the order of November 2l8t, 
^ 1850, and that, "by the 66th Article of the said order the said 
Poor law board did order and direct that the vestrymen of the joint 
vestry of the said united parishes should, whenever it might be requisite, 
or whenever a vacancy should occur, appoint fit persons to hold certain 
offices of the workhouse therein specified, and also such assistants and 
servants as they or the directors, with the consent of the Poor law 
board, might deem necessary for the efficient performance of the duties 
of any of the said offices." And that " the said Board djd, in and by 
the 88th Article of the said order, direct that the directors might, at 
their discretion, suspend from the discharge of his or her duties any 
master, matron, schoolmaster, schoolmistress, or medical officer, and 
should, in case of every such suspension, report the same, together vitk 
the cause thereof, to the Poor law board." It then proceeded: "And 
whereas it is expedient to alter the said order, in respect of these herein 
recited provisions, in manner hereinafter mentioned ; 



• 17 ADOLPHUS & ELLIS. N. S. , 467 

"Now therefore We the said Poor law board, in pursuance of the 
powers given in and by the statutes in that behalf, do hereby rescind 
BO much of the said recited order as requires the said vestry to appoint 
such assistants and servants as the said directors may deem necessary 
for the efficient performance of the duties of any of the said offices, and 
80 much of the said order as purports to authorize the said directors to 
suspend any officer of the said workhouse. Given," &c. . 

Peacock^ in Trinity Term, 1851, obtained a rul^ to show cause why 
the order of November 21st, 1860, *now before the Court on w'^Af*r^ 
certiorari (see the preceding case), should not be quashed. '- 

The motion was grounded on the affidavit of Mr. Robinson with 
respect to the existing offices and officers, filed in the preceding case. 
An assistant Secretary of the Poor law board made affidavit, in opposi- 
tion to the rule, that, after the certiorari was granted, the Poor law 
board wrote and sent to Mr. Robinson, the vestry clerk, a letter, in 
which the Board, referrilg to the late decision of this Court, said that 
they had deemed it right to issue an order to rescind so much of their said 
order of 21st November last as contained the provisions which the Court 
had pronounced to be unsupported by the Poor Law Amendment Act ; 
and they forwarded a copy of the order of March 24th and of the short- 
hand note of the judgment. The affidavit set forth the last-mentioned 
order. In this term,(a) 

Sir A. J. E. Cockbumy Attorney-General, Oromptan and Tomlinsonj 
showed cause. — The first question is, whether, the Commissioners having 
rescinded the objectionable part of the order, the Court is bound to 
quash it in toto. It is true that, in Regina v. The Poor Law Commis- 
sioners, AUstonefield Incorporation, 11 A. & E. 558 (E. C. L. R. vol. 
39), the order was dealt with as entire ; but that was for the purpose, 
only, of bringing it up by certiorari. [Lord Campbell, C. J. — The 
whole record of an indictment must come before the Court ; but one 
count alone may be quashed.] The only other authority for treating 
the order as entire is Regina v. Hunt, 12 A. k E. 180 (E. C. L. R. vol. 
40). It was there urged that << the Court cannot quash the order in 
part ;" and Lord '^'Denman, C. J., said that that had been so held r^^/>q 
in the AUstonefield case. But no such . decision appears in that ^ 
case, as to quashing the order. The point came on by surprise, and 
was not discussed at the bar. [Lord Campbell, C. J. — I do not think 
we argued it as we should have done if our attention had been called to 
the point in time.] In many cases, prior to those cited, orders of 
justices and of quarter sessions have been treated as divisible ; Rex v. 
Price, 6 T. R. 147, Rex v. Sweet, 9 East, 25, Rex v. Maulden, 8 B. & 
C. 78 (E. C. L. R. vol. 15), Rex v. St. Nicholas, Leicester, 8 A. & E. 
79 (E. C. L. R. vol. 30), Regina v. The Justices of Wiltshire, 12 A. & 
E. 793, 798, 9 (E. G. L. R. vol. 40). A fortiori may this be done in 

(a) June 11th. Before Lord OampbeU, C. J., Patteion, Coleridge, and Erie, Je. 



478 REGINA v. ROBINSON. T. T. 1851. 

question is, whether you can take it away from those who had it. The 
objection appears well founded, according to the rule laid down before.] 
Article 65 is also objectionable. 

Sir A. J. JE. Cockbum^ Attorney-General, was then called upon as 
to these points. — The judgment of the Court in the case of St. Giles 
and St. George, ante, pp. 445, 462, pronounces Articles 66 and 88 
invalid, but recognises the rest as legal. All the articles were under 
consideration in that case. In must have been intended by stat. 4 & 5 
W. 4, c. 76, that the Commissioners should have a controlling and 
sovereign power in such matters ; the right of removal is given them 
with that view. A master of the workhouse might choose to disobey 
the orders of the Commissioners, and might be supported by the vestrj- 
men in so doing. [Lord Campbell, C. J. — A distinguished instance of 
the power of removal being in two different bodies is that of the Gover- 
nor General of India, who may be removed by the Crown or by tlie 
Company. But that is a very anomalous case. Here you are author- 
ized to regulate a power in the vestrymen, and you claim to extinguish 
it.] The policy of the Act, in respect of this particular office, is shown 
by sect. 48. [Lord Campbell, C. J. — The point on Art. 83 must be 
considered an open one. The attention of the Court was not called to 
it on the former argument. Substantially, the question now must be 
whether or not the powers of appointment and removal given to the 
vestrymen by the local Act are over-ridden by stat. 4 & 5 W. 4, c. 76.] 
♦4741 *The Attorney-General then mentioned that there was another 
^ case depending, Regina v. The Governors and Directors of the 
Poor of St. James, Westminster, which would raise similar points. 
[Lord Campbell, C. J. — We will hear that case before giving onr 
decision upon this.] Chir^ adv. tniA. 



The QUEEN v. The Governors and Directors of the Poor of ST, 
JAMES, WESTMINSTER, 

In this case TomlinBon^ in the present term, obtained a rale to shoir 
cause why a mandamus sbpuld not issue, directed to the Governors and 
Directors of the Poor of St. James, Westminster, commanding them to 
adftiit Dr. William Wright into the workhouse of the said parish to per- 
form his duties as chaplain thereof. The rule was obtained on affidants 
by which it appeared that on 17th July, 1850, the Poor Law Commis- 
sioners made an order relating to the parish of St. James, Westminster. 
It is not necessary to set out any portion of this order, as, with the 
exception of a few verbal alterations making it applicable to a single 
parish instead of two united parishes, it was thAsame as the order of 
21st November, 1850, of which the material parts are set out in the 



17 ADOLPHUS & ELLIS. N. S. 474 

report of Regina v. Poor Law Commissioners, In re St. Giles and St. 
George, ante, pp. 445, 446.(a) Before this order was made, the relief 
of the poor within the parish *of St. James was regulated by stat. p^j^i^c 
2 G. 3, c. 68,(6) and stat. 66 G. 8, c. liv.(c) L ^^^ 

By stat. 2 G. 3, c. 68, s. 21, the vestry were to nominate twenty-one 
persons, who, with the <shurch wardens and overseers, were to be the 
governors and directors of the poor, and were aathorized to make such 
rules, orders, and regulations for the application of moneys to be raised 
for the relief of the poor, and for the better maintaining, governing, 
&c., the poor, as might 16 them, or any seven of them, seem expedient ; 
but no such rules, &c., were to be in force until confirmed by the major 
part of the vestry ; << nor shall any such rules, orders, or regulations, 
when made and confirmed as aforesi^id, be repealed or altered, except 
at a like meeting of the vestrymen of the said parish, to be assembled 
pursuant to this Act, which vestrymen, or the major part of them then 
present, are hereby empowered from time to time to repeal or alter the 
same in such manner as they shall think proper." Shortly after the 
passing of this Act, a set of rules were duly adopted by the vestry, by 
which various ofiicers, and amongst others a chaplain, were to be annu- 
ally elected at Easter in each year, to hold office for one year ; and the 
officers were annually chosen by the governors and directors, according 
to the said regulations, which remained unaltered except by the order 
of the Poor Law Board. Dr. Wright, the claimant, had been, under 
these rules, appointed chaplain in 1843, and had been annually re-elected 
in each year, ^including Easter, 1860, and was acting as chap- r^Aja 
lain at the time when the order of the Poor Law Board came ^ 
into operation. In January, 1861, he received notice that he was not 
to be re-ele<fted. No cause was assigned. The Governors of the poor 
advertised for candidates for the vacant office. The Poor Law Commis- 
sioners called their attention to the order, and more especially to Article 
83, which, as they contended, made the chaplain acting at the time of 
the order irremovable except by the Poor Law Board. The Governors 
of the poor, taking a different view of the question, elected another 
person, and refused to admit Dr. Wright within the workhouse. 

On a subsequent day. in this Term, the Court, on the application of 
Keane (on a suggestion that the point in dispute would be more regu- 
larly raised by a motion for a certiorari to bring up the order of the 

(a) The ftrtioles 66, 67, in the order there set forth were nnmbered 67, 68, in the order referred 
to in the present case. The other articles referred to in this ease eorresponded in numbers with 
thoHO set forth in pp. 446-440, ante. There was no artlele corresponding with Art 76 (not 
material here) of the former order. In the present order the powers given to Testrjrmen or to 
directors by the first-mentioned Articles were Tested in the directors. 

(6) <«Por the better relief and employment of the poor, and for cleansing of the streets, lanes," 
Ic, in the parish of St James, within the liberty of Westminster, and for enlarging the ohoich- 
yard," ^c, 

(e) Local snd personal, poblio. " To amend an Act," 2 G. 8, o. 58, «and another Aot of the 
first year of King Jamee the Second" (c 22), «for erecting the said parish." 



476 REGINA v, ST. JAMES, WESTMINSTER. T. T. 1851. 



Poor Law Commissioners for the purpose of quashing it, and that coun- 
sel for the Poor Law Board might show cause against a rule for i 
certiorari in the first instance so as to avoid any delay), ordered that 
the rule for a mandamus should be enlarged till the determination of 
the rule for a certiorari, in case it were obtained in this term. 

Peacock now moved for a certiorari to bring up the order for the 
purpose of quashing it. — The order is beyond the jurisdiction of the 
Poor law board. — Stat. 5 & 6 W. 4, c. 76, gives them their authority; 
it has been considered in several cases, and very recently in the case 
of St. Giles and St. George, ante, p. 445. The cases establish that the 
Poor law board have a controlling power, but have no right to deprive 
the local authorities of the powers conferred on them. ' By the present 
♦4771 ^^^^^> ^^^ ^^^'' ^*^ Board claim not only to dismiss the *chap- 
^ lain and other officers when they see fit, which it is not disputed 
they may do, but wholly to deprive the Governors of the poor of all 
power ; for by the 83d Article the officers are to continue to hold office 
until they << die, or resign, or be removed by the Poor Law Board," or 
be proved insane. 

The Court granted a rule Nisi. 

Sir A. J. JE. Cockbum, Attorney- General, showed cause in the first 
instance. — The question depends upon the construction of stat. 4 & 5 
W. 4, c. 76, 8. 46, which gives the Poor law board power to direct the 
overseers or guardians of the poor of any parish to appoint officers, and 
authorizes the board to «' direct the mode of the appointment, and de- 
termine the continuance m office, or dismissal of such officers." It is 
said that Article 83 goes beyond the power given by this section, be- 
cause it does not leave to the Governors and Directors of the poor o( 
St. James the power to dismiss the officers. But, from the nature of 
the thing, a power to «< determine the continuance in office*' must be 
exclusive. It would be idle to direct that Dr. Wright should continae 
in office